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Archive for November, 2010

There are real penalties for running contrary to the Left’s agenda…especially when you have the temerity to not share their priorities and you dare to move freely in their territories.  This cautionary tale comes courtesy of the Philadelphia Daily News.

Unlike a Somali youth who did his damnest to carry out the cold-blooded murder of innocent people, and was only stopped due to FBI involvement, Brian Aitken is serving a 7 year sentence for transporting two handguns, ammunition, and magazines he legally owned.

Brian, a law-abiding citizen who was in the process of moving from Colorado to New Jersey after a divorce, expressed some disappointment with his life after his ex-wife cancelled a scheduled visitation with his son.  Mom, a social worker, was concerned that he might do something stupid, and called the police.

 Sue Aitken, a trained social worker, decided to play it safe and called police, but she hung up before the 9-1-1 dispatcher could answer. Police traced the call and showed up anyway, and found two handguns in the trunk of Brian’s car.

Thanks, Mom!  Clearly another case of government involvement improving the lives of average, everyday citizens.

But unlike that Somali youth in Oregon, Aitken had the misfortune to have offended the gun-fearing-wussies (GFWs) of New Jersey, and there would be no mercy for this heinous crime of transporting firearms and ammunition legally owned.

When Mount Laurel police arrived at the Aitkens’ home on Jan. 2, 2009, they called Brian – who was driving to Hoboken – and asked him to return to his parents’ home because they were worried. When he arrived, the cops checked his Honda Civic and, inside the trunk, in a box stuffed into a duffel bag with clothes, they found two handguns, both locked and unloaded as New Jersey law requires.  [emphasis added]

Aitken had passed an FBI background check to buy them in Colorado when he lived there, his father said, and had contacted New Jersey State Police and discussed the proper way to transport them. [Again, emphasis added]

Transported in the manner that the law required, just as he was informed when he asked NJ authorities.  But wait!  There’s more!

In the Garden State, Aitken was required to have a purchaser’s permit from New Jersey to own the guns and a carry permit to have them in his car.

He also was charged with having “large capacity” magazines and hollow-point bullets, which one state gun-control advocate found troubling.

“What little I can glean about the transportation issue leaves me puzzled, but a person with common sense would not be moving illegal products from one place to another by car,” said Bryan Miller, executive director of CeaseFire NJ, an organization devoted to reducing gun violence.

Imagine that, a gun-fearing-wussy who fears guns for a living can’t imagine how it might be that a person might not consider that ammunition legal in one state might not be legal in another, and that the owner might not think to check on that when moving.  Huh.

And it couldn’t be that there might be an exception for someone moving, could there?

New Jersey allows exemptions for gun owners to transport weapons for hunting or if they are moving from one residence to another. During the trial, Aitken’s mother testified that her son was moving things out, and his friend in Hoboken testified he was moving things in. A Mount Laurel officer, according to Larry Aitken, testified that he saw boxes of dishes and clothes in the Honda Civic on the day of the arrest.

Mom said he was moving, car full of stuff that people might have in their home, but would be unusual to carry around in your car for no reason, friend said he was in process of moving in.  Damn.  That is a hard one to figure out.  At least for the judge and the prosecutor.

The exemption statute, according to the prosecutor’s office, specifies that legal guns can be transported “while moving.” Despite testimony about his moving to Hoboken, a spokesman for the prosecutor said the evidence suggested that Aitken had moved months earlier, from Colorado to Mount Laurel. “Again, there was no evidence that he was then presently moving,” spokesman Joel Bewley said.

After Nappen raised the moving-exemption issue, he said, the jury asked Judge Morley for the exemption statute several times and he refused to hand it over to them. Morley, in a phone interview, echoed the sentiments of the prosecutor’s office.

“My recollection of the case is that I ruled he had not presented evidence sufficient to justify giving the jury the charge on the affirmative offense that he was in the process of moving,” Morley said.

Yes, because dishes and clothes in the car, and the testimony of your Mom and your new roommate isn’t sufficient evidence.  And that whole “presumption of innocence” and conviction on evidence “beyond a shadow of a doubt” thing?  It doesn’t apply to those who would assert rights the nanny staters do not wish you to have.

Of course, the Judge’s mental acuity really isn’t all that, either, as you note at the end of the news story.

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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.

 

The TSA’s nonsense has reached new heights.  It is bad enough that government employees are doing the oogle and grope without warrants, but when they refuse to follow their own damn rules and treat American citizens like terrorist out of spite, it is time to take them down.  Hard.

The TSA’S own guidelines:

TSA is also modifying the rules associated with carrying breast milk through security checkpoints. Mothers flying with, and now without, their child will be permitted to bring breast milk in quantities greater than three ounces as long as it is declared for inspection at the security checkpoint.

Breast milk is in the same category as liquid medications.

When carrying formula, breast milk, or juice through the checkpoint, they will be inspected, however, you or your infant or toddler will not be asked to test or taste breast milk, formula, or juice. Our Security Officers may test liquid exemptions (exempt items more than 3 ounces) for explosives.

When traveling with your infant or toddler, in the absence of suspicious activity or items, greater than 3 ounces of baby formula, breast milk, or juice are permitted through the security checkpoint in reasonable quantities for the duration of your itinerary, if you perform the following:

  1. Separate these items from the liquids, gels, and aerosols in your quart-size and zip-top bag.
  2. Declare you have the items to one of our Security Officers at the security checkpoint.
  3. Present these items for additional inspection once reaching the X-ray. These items are subject to additional screening.

You are encouraged to travel with only as much formula, breast milk, or juice in your carry-on needed to reach your destination.

You are allowed to bring gel or liquid-filled teethers, canned, jarred, or processed baby food in your carry-on baggage and aboard your plane.

For information on creams, medicines, or other essential items for your child, please read our guidance on these items. Click here for the list of permitted and prohibited items.

It has passed time to use this:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

-42 U.S.C. section 1983

I hope she got names and badge numbers.

H/T DPUD

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If there was ever any doubt that the current occupant of the Oval Office is tone-deaf when it comes to the voters, and it wasn’t dispatched with voters who understand perfectly what he is trying to do, there is this gem in the New York Daily News:

Obama tells GOP it’s bad time for ‘no’ as meetings with Republicans loom

No, I didn’t make that headline up.

Ahead of his meeting with the Republican leaders this week, President Obama on Sunday warned them the era of just say no is over.

Why?  Because he won in 2008, that’s why.

The GOP opposed nearly every initiative Obama and the Democrats offered – and sometimes passed – over the last two years.

And the failures to pass the ones that failed had nothing to do with the Republicans, who didn’t have the numbers to stop any of these travesties anyway.  It’s a nice fiction that they failed because of the obstructionist Republicans, but people are paying attention now, and they know that the real problems lay in the straitjacket wing of the Democratic Party.  (Thank God for those nutbars.)

They were so successful at casting those policies as job-killing bailouts that were deadly to the economy that voters on Election Day still believed – by a 2-to-1 margin – that the economy was shrinking, bailouts were ongoing and their taxes were heading up – even though the opposite was true.

Sure the opposite was true.  Just tell the businesses that are looking at the costs of “going green”, or all the waivers to the Obamacare requirements being handed out.  People aren’t as stupid as the Administration and the usual suspects would like to believe.

With the GOP gaining greater say in the Senate and taking over the House, Obama said they’d have to play the game differently over the next two years.

He’s right.  They have the numbers to actually stop some of this foolishness and actually do some responsible and Constitutional things.  And what’s more, the voters who put them there will expect them to do just that.

“Campaigning is different than governing,” Obama told reporters as he flew home from his 10-day Asia trip, suggesting Republicans will walk back some of their more adamant rhetoric in coming days as they take stock of reality.

Not that you’d know it from the way that the President has acted in the time since he actually took the oath of office and was expected to actually do the work.  The “Slurpee” talk was wasn’t governing, although it paid lip service to it.  And speech after speech after speech after speech trying to convince anyone who would listen that Obamacare was a great thing wasn’t leading, either.  But getting this kind of lecture from someone whose agenda was “Shellacked” a few weeks ago is both historic and unprecedented.  Especially when many of the new office holders specifically ran against Teh Won’s agenda.  Maybe if he continues to tell the voters that they’re stupid because they don’t want what he is peddling, he can make himself believe he is the King of Siam, and he can be followed everywhere by a retinue of royal retainers whose only duty is to carry his ego and the shadow he believes he casts behind him, preventing both from ever touching the ground.  I used to wonder what disaster would befall us when reality came and parked itself on his puny little chest and refused to go away.  Now I fear what will happen if he ever rejoins the rest of us here in the real world.

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A still from "Friendly Persuasion", a movie looking at the collision of morality with reality.

 

In the November 11th post below, MJ had the temerity to ask a difficult question. (Just kidding, MJ)

BiW,

I was thinking about the morality of pacifism, and would like to get your input.

‘No matter how much you may believe war is unjust, and that violence is never an answer’

I understand that people hold these thoughts, but can’t square the circle. Do pacifists believe that it is wise to allow family members to be killed rather than to defend them with force?

Is this a belief system that never needs to be employed so therefore doesn’t need to be thought about? Does it provide cover for cowardice or supposed moral superiority?

MJ

 

As much as I hate answering a question with a question, I suppose it would be helpful to understand whose morality you are referring to.  I can understand how a Christian might come to such a view.  Even before I saw “Friendly Persuasion”, I was aware of the Quakers, and other sects that would say without question that it is the morally superior position.  Clearly, other religions might have a harder time coming to that conclusion.  It would certainly be difficult for a follower of Islam to support the idea.  I’ve certainly never been able to square the idea of jihad with calling it “The Religion of Peace”, but as the name itself is rooted in the word “submission”, and the concept in practice has always been in tandem with fire and the sword, I think it is misleading on its best day.  The only other “non-western” religion I am at all familiar with would be the Hindus, and I seem to recall that the Bhagavad Gita opened with Krishna talking to Arjuna on the eve of a battle against people who included family members.

Approaching this question from a Christian perspective, I don’t believe that pacifism is moral superior in every case, or morally defensible in every case.  Before I go farther, I want to stress that this perspective is my own.  I do not claim to speak for the whole of Christendom, largely because this seems to me to be one of those issues to which “12 Therefore, my beloved, as you have always obeyed, not as in my presence only, but now much more in my absence, work out your own salvation with fear and trembling;” [Philippians 2:12] seems to apply.

Is violence never an answer?  Some Christians might say “Yes, you are to do as the Master instructed, and turn the other cheek.”  While I tend to think it admirable, the fact remains that I only have two, and I can certainly envision a circumstance whereby individuals might have to defend themselves in order to prevent harm to themselves, and be justified in doing so.  Where do I find this justification?  In the same Bible that they themselves refer to.

 35 And He said to them, “When I sent you without money bag, knapsack, and sandals, did you lack anything?”
So they said, “Nothing.”
36 Then He said to them, “But now, he who has a money bag, let him take it, and likewise a knapsack; and he who has no sword, let him sell his garment and buy one.

Luke 22:35-36

Now Jesus knew the time for his death, and eventual departure was fast approaching, and I couldn’t help but take this as him saying they needed to start making provision for prudently meeting their own needs and taking responsibility for their own safety.  It is one thing to have faith, but to rely on God for everything would be to infantilize the very men that he was sending forth to bring his word into the world.  Not returning the details of life back to them would have ill-prepared them for the task ahead, and the eventual martyrdom that most of them met.  If being responsible for your own safety was intended to be good enough for the disciples, I am not one to hold myself to a different standard.  Yes, that means that in my estimation, I am justified in defending myself and others from threats.

Having addressed the question as it applies to the individual, the next question that it implies is “Is it moral to abstain from your nation’s call to conflict?”

When examining the question, I started with a curious source…Thomas Paine.

Society in every state is a blessing, but Government, even in its best state, is but a necessary evil; in its worst state an intolerable one: for when we suffer, or are exposed to the same miseries BY A GOVERNMENT, which we might expect in a country WITHOUT GOVERNMENT, our calamity is heightened by reflecting that we furnish the means by which we suffer. Government, like dress, is the badge of lost innocence; the palaces of kings are built upon the ruins of the bowers of paradise. For were the impulses of conscience clear, uniform and irresistibly obeyed, man would need no other lawgiver; but that not being the case, he finds it necessary to surrender up a part of his property to furnish means for the protection of the rest; and this he is induced to do by the same prudence which in every other case advises him, out of two evils to choose the least. Wherefore, security being the true design and end of government, it unanswerably follows that whatever form thereof appears most likely to ensure it to us, with the least expense and greatest benefit, is preferable to all others.

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Here then is the origin and rise of government; namely, a mode rendered necessary by the inability of moral virtue to govern the world; here too is the design and end of government, viz. Freedom and security. And however our eyes may be dazzled with show, or our ears deceived by sound; however prejudice may warp our wills, or interest darken our understanding, the simple voice of nature and reason will say, ’tis right.

-Common Sense

If pacifism were a moral end unto itself, then moral men would have no security, and any freedom would be a transient state of affairs, because both would always be subject to the caprice and avarice of those not so possessed, and the governments that grew out of society would not last.

And at the same time, I find this consistent with the Bible as well:

 1 Let every soul be subject to the governing authorities. For there is no authority except from God, and the authorities that exist are appointed by God. 2 Therefore whoever resists the authority resists the ordinance of God, and those who resist will bring judgment on themselves. 3 For rulers are not a terror to good works, but to evil. Do you want to be unafraid of the authority? Do what is good, and you will have praise from the same. 4 For he is God’s minister to you for good. But if you do evil, be afraid; for he does not bear the sword in vain; for he is God’s minister, an avenger to execute wrath on him who practices evil. 5 Therefore you must be subject, not only because of wrath but also for conscience’ sake. 6 For because of this you also pay taxes, for they are God’s ministers attending continually to this very thing. 7 Render therefore to all their due: taxes to whom taxes are due, customs to whom customs, fear to whom fear, honor to whom honor.

Romans 13:1-7

13 Therefore submit yourselves to every ordinance of man for the Lord’s sake, whether to the king as supreme, 14 or to governors, as to those who are sent by him for the punishment of evildoers and for the praise of those who do good. 15 For this is the will of God, that by doing good you may put to silence the ignorance of foolish men— 16 as free, yet not using liberty as a cloak for vice, but as bondservants of God. 17 Honor all people. Love the brotherhood. Fear God. Honor the king.

1 Peter 2:13-17

Basically, government is to be obeyed, because its role is to punish evil.  In punishing evil, government preserves society, and the blessings that it will bring forth when it is able to flourish and not live in the shadow of imminent evil.  Some of these questions are easy.  Is fighting communism (ala Korea, Vietnam, and the Cold War in general) fighting evil?  I think from a Christian perspective, it is, but because so much in Christianity is dependent upon the individual. ( The way being narrow, and the Jesus’ commands to individuals, and not to institutions or bodies.) In contrast, communism is not about the individual, and in fact refuses to recognize the individual as anything other than a cog in a much larger machine; and the virtue of the collective, rather than the individual is extolled.  Does that mean that we took a measured and balanced approach to fighting communism?  No.  But if you believe that communism is evil, then it is enough to answer when the government calls you to battle it, because government is meeting its appointed purpose in doing so.  (And nothing prevents you from working to change the approach if you believe that it is necessary.)

If we were to apply this to a “War on Terror”, I think the answer gets easier instead of harder.  There is simply no way for a polite society to defend a philosophy that specifically targets civilians, and in fairly gruesome ways, as a means to bring about political change.  The fact that some wrap themselves in the mantle of political correctness and moral relativism in order to make excuses for it is simply a testimony to the madness of the age we live in.  The fact that we are doing it with volunteer forces is a good thing, as a draft would lead to security concerns that would not have been issues in prior conflicts, as the Fort Hood shootings demonstrate.

I fear that this answer doesn’t really answer anything for you, MJ, but like many difficult questions, I suspect that the answer would change for some people when facts and circumstances breathe life into otherwise esoteric or academic questions.

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As promised, I will answer the question posed by Rutherford in the last thread. 

Yes, I think that leaving Vietnam when we did was a betrayal.

I think it was a betrayal to the Vietnamese people we made promises to…the same ones who showed up at the Embassy and begged to be taken when we left.  I think it was a betrayal of an entire nation of people who will never know anything other than service to the state, and a life subsisting on what the state will allow them to keep.  And most of all, I think it was a betrayal of every American, draftee or volunteer, who died there.  I think that leaving before anything that resembled a victory was achieved there pissed all over their sacrifice and placed a price on their lives that in truth was no greater than the political philosophy we were there to defeat.  Lives given in the service of freedom are wasted when we do not even hold that which we fight at bay, let alone defeat it.

And this message was only reinforced when those who survived returned to be spit on and vilified by those brave enough to follow their conscience and dodge the draft, rather than following the law and showing up when they were summoned, or maybe even enlisting.  It was one thing to oppose the policies that put us in Vietnam, and sent thousands of 19 year olds there, but to vilify and scorn those who actually went?  That was inexcusable.  If you believed that the war was wrong, if you believed that the young men (and women) who went were victimized and taken advantage of by our own government, how did treating them that way on their return make sense?  The disconnect of being against the war for “compassionate” reasons, yet being so uncompassionate against our soldiers, many of whom were not voluntary, does not portray a consistent or coherent message.

Was the war winnable?  What would victory look like?  I don’t know.  I was 4 years old when those desperate people climbed to the roof of our Embassy in Saigon in the fervent hope that they would be lucky enough to be airlifted out,  and even as I watched those images as teenager who had an almost geeky interest in history, those images actually brought tears to my eyes.  Betrayal is the only word that can adequately describe how that conflict ended.

I do know that the military itself maintains that the Tet Offensive was a failure for the Vietnamese communists.  Yet if you watch old television coverage, you would believe it was the beginning of the end.  Being a theatre in the Cold War, and knowing the involvement of other communist states in the North’s war effort, it might have been the best that could have been hoped for was a divided country, like Korea.  But unlike the so-called “Peace with honor” (and whoever coined that phrase should have been beaten to within an inch of his life), even that would have allowed people in the South to live their lives out of the shadow of the thumb of a repressive and brutal regime, and it would have meant that the lives of all the Americans there would not have been in vain.  This is why I consider this conflict to be second only to the Civil War in terms of being such a sorrowful, wrenching moment in our nation’s history.

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The questions were also raised in the last thread about DADT, and Volunteer forces vs. Draftees.

Time and some unresearched questions I have won’t really allow me to comment on these things at this moment, although I will not that the Solicitor General has asked the Supreme Court not to rule on the stay on the District Court order repealing DADT, essentially asking for time to allow for an orderly rather than abrupt change in policy by lifting the stay right now.  If you accept the premise that this is a civil rights issue, than this might make some sense, as President Truman also set up a means for transition when he signed Executive Order 9931 which is credited with desegregation of the Armed Forces.

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Veterans’ Day is one of those holidays that always makes me sad, not simply because of the reason for the day, but because of the significance that some people never dwell on.  In an age where a large portion of society wants to complain that any war, not just the ones we are currently involved in are manifestly unjust, it is easy to lose sight of two inevitable truths: 

1.  No matter how much you may believe war is unjust, and that violence is never an answer, the fact is that sometimes, wars come to you, no matter how you conduct yourself; and

2.  Whether we are discussing a war of aggression or of self-defense, the men and women who answer the call do so with the full knowledge that they may be expected to give everything, including their lives.

It is for the people who answer that call, and not the cause for which they sacrifice, that we honor on this day.

Every conflict in which our nation has fought in the last century or so has had its own flavor, and as a friend recently reminded me, this is captured in the memorials which commemorate them.  On this day, I refuse to pass judgment determining whether a particular conflict is good or bad.  Good or bad, Americans fought, and Americans died.  Some never came home, some came home in boxes, and some came home with their innocence forever surrendered to places with unpronounceable names, or generic designations.  Some came home haunted by the things  they have seen, and some came home able to reconcile horrors that they witnessed with a life filled with the mundane and the ordinary.  And good or bad, some conflicts just touch us, even if we didn’t fight in them.

For me, that conflict would be Vietnam, probably because so many of my friends’ fathers served there.  Some of you in the same age group as me know what I am talking about.  Those moments where someone’s Dad would lapse into a story about something they saw there…something that changed them.  And to a man, every one of them I knew growing up had an undeserved shame.  For some it was the shame of coming back to being spit on and called “Baby Killers” by people who had never been there, and never did what they had to do.  For some, it was guilt over being alive when people they had known, had lived with, and had trusted with their lives, fell long ago in steamy jungles on the far side of the world.  And for some, it was shame over betrayal.  The betrayal of their sacrifices, and the lives of friends and colleagues by a government that micro managed the war, and eventually did what was politically expedient rather than what was right.  The shame that only a betrayer can feel in leaving so many to the certain death at the hands of an evil and destructive political philosophy that treats men as interchangeable parts and not the unique individuals they are.  A political philosophy that we promised to save them from.

That is a heavy weight for anyone to bear, and it is bitter compensation for those who gave up their childhood and innocence for the service to their country.  It can be easy to forget that this conflict, like all conflicts, was ultimately dependent on the soldier.  I took some time reading some letters home from one of these soldiers to remind myself of that.  I think this one helps to bring this idea home.  I don’t know if Mike made it home.  I hope that he did.

Jan 12, 1969
Dear Family,
I got the package yesterday, and I was real grateful. We are low on C-rations, and there is hardly any water.

We are supposed to be out in the bush for 4 days, but it ended up we’re still out here. It’s been about 2 weeks now. We are guarding this road. Making sure no VC get anywhere near the 1st Battalion, 1st Marines area, (1/1). Every afternon I’ve got gate watch. We all take turns from dawn to dusk. We just have to check out the ID’s of the civilians going up and down the road. If they don’t have an ID they are suspected of being a VC. The gate is a big cement grave. Our whole perimeter is set up in a big graveyard. In fact, our bunker is on top of a cement grave with sandbags on all sides. On one end we built a little hootch, and our machine gun is set right on top where the body was laid. I think that’s pretty cool. Inside the hootch there is the tombstone with all kinds of Chinese writing on it. At night we have a candle burning inside to see by.

Last night I went on a fire team-sized patrol, a fire team consists of 4 people. The leader was some corporal who I don’t feel safe with at all. He got here in Vietnam the same time I did, but he was put in charge right away because he’s a corporal. He goes by the book on everything. If we get hit we aren’t supposed to fire back, only on his command. I’d rather be with somebody that has a little more time in country, and knows what to do.

In about 5 months I will be the machine gunner for this squad, and in about 7 months I will be team leader. All the other guys in this gun team will be going home around the same time. Now I’m just the last ammo humper, but I don’t mind just as long as I gradually learn my job.

Soon I will have T-I-C, (time in country), and the experience. That’s what counts here.

I’m learning this language ok now, but the Marines only know a few phrases like “come here,” “go away,” “let me see your ID,” etc; but I want to learn more than this.

Mom, you were wondering what kinds of birds they have here. They are beautiful, nothing like in the USA. There’s swans, and big white birds with long necks, and ordinary birds with crowns on their heads, and then other birds that look like sparrows, only half their size.

I’m glad to hear you had snow. I kind of wish it would snow here once in awhile.

Enclosed are some pictures. Could you save them for me? They’ll get ruined over here. You can have the ones of me if you want. Also enclosed is part of a diary I started when I first got here. I’d better go now.

Mike

I can’t make you ponder the meaning of this day, and I can’t make you thank a veteran for doing what they did, but I will suggest that the kind of humility that comes from doing so can enrich your understanding of the day.

Thank you to Jim’s Dad, Troy’s Dad, Dan’s Dad, MCPO Airdale, BrewFan, Dick, and all the other veterans I know.  Thank you.

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On Tuesday, 70% of Oklahoma voters passed an amendment called State Question 755.  This amends Article I, Section 7 of the Oklahoma Constitution, which currently reads:

§ 1. Courts in which judicial power vested.

The judicial power of this State shall be vested in Senate, sitting as a Court of Impeachment, a Supreme Court, the Court of Criminal Appeals, the Court on the Judiciary, the State Industrial Court, the Court of Bank Review, the Court of Tax Review, and such intermediate appellate courts as may be provided by statute, District Courts, and such Boards, Agencies and Commissions created by the Constitution or established by statute as exercise adjudicative authority or render decisions in individual proceedings. Provided that the Court of Criminal Appeals, the State Industrial Court, the Court of Bank Review and the Court of Tax Review and such Boards, Agencies and Commissions as have been established by statute shall continue in effect, subject to the power of the Legislature to change or abolish said Courts, Boards, Agencies, or Commissions. Municipal Courts in cities or incorporated towns shall continue in effect and shall be subject to creation, abolition or alteration by the Legislature by general laws, but shall be limited in jurisdiction to criminal and traffic proceedings arising out of infractions of the provisions of ordinances of cities and towns or of duly adopted regulations authorized by such ordinances.

SQ 755 adds the following language to the Section:

C.   The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions.  The courts shall not look into the legal precepts of other nations and cultures.  Specifically, the courts shall not consider international law or Sharia Law.  The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

Of course, it didn’t take long for the usual suspects to decide that this was a problem.

Salon has reported that the three main prongs of CAIR’s attack are as follows:

The Establishment Clause

The First Amendment directs all government bodies to “make no law respecting the establishment of religion.” This measure violates that basic principle of American law and governance by specifically targeting one faith and one religious community.

Separation of Powers

Our federal system and our state system is in part governed by the concept of separation of powers. One branch of government cannot restrict what another branch of government can consider in terms of doing its job — in this case, deciding cases.

Supremacy Clause

International law refers to the conduct of the relationships between sovereign nations. … International law is, according to the Supremacy Clause of the U.S. Constitution, the law of the United States of America.

 And:

How will this measure negatively impact Oklahomans of all faiths?

It will prevent Oklahoma courts from implementing international agreements, honoring international arbitrations, honoring major international human rights treaties, honoring marriages and divorces from other countries, and will cost jobs by sending the message that contracts between Oklahoma companies and international partners will not be enforceable. Oklahoma could become the only state in the nation incapable of enforcing international business law.

Let’s take each of these in order, shall we?

 The Establishment Clause:

“Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof…” -Amendment I, United States Constitution

While someone looking at the plain language of the clause might say “The state of Oklahoma is not Congress”, the Fourteenth Amendment, through continued application by the United States Supreme Court, gradually brought the Bill of Rights to apply to actions by the various states.  That said, the question then becomes “Does this amendment to the Oklahoma Constitution establish a religion?”  Clearly, it does not.  The remaining question is “Does it interfere with the free exercise thereof?”  That answer is “no”.

While litigant Muneer Awad claims: 

Awad said in the suit that in his will he directs that his possessions be divided “in accordance with the guidance contained in the prophetic teachings” of Islam.

After the law is enacted, “no state court in Oklahoma will incorporate in the will the documents to which [Awad] referred. This is because those documents are ‘Shariah law.’ To incorporate into a will verses from a compendium of the teachings of Mohammed would surely require a judge to ‘consider … Shariah law’ which will soon be forbidden,” he said.

“The apprehension of this uncertainty is an injury itself,” he said.

he ignores the fact that making a will is not an inherently religious exercise, and therefore even if making a will with directives subject to such clauses is an act of faith for him, as he seems to be claiming, it coincides with a non-religious act that is subject to state law.   It is also a facetious claim for an attorney to make, as he can remove all uncertainty by listing the directives, rather than incorporating them by reference to a religious tome.  If he were to do so, even with a reference to the Koran, as long as all the other formalities of the execution of it were in accordance with state law, and none of its directives violated state law, the court could enforce the result without having to resort to reference to the Koran.  There is also the fact that no person has a right to go to the courts seeking to have them enforce the petitioner’s own religious laws, especially when they intersect with people who do not share their faith.   (And as a practical matter, if the will was otherwise lawfully executed and gave his executor/personal representative non-intervention powers, the courts would not oversee how his last wishes were given effect anyway, and if his estate was insolvent, which would require court intervention, there would be nothing to do but settle with his creditors out of what existed of his estate anyway, a process dictated by state law. )

Every story I read indicates that the concern underlying this arose from the trend of other western nations allowing Sharia Law to be enforced by Sharia Courts within their borders, and a recent New Jersey case in which a woman sued her husband for repeatedly raping her, and the trial court found him innocent on the basis of his belief that he was fulfilling his obligation as a husband under Sharia Law.  The ruling was overturned by an appellate court, but the fact that a system of law other than one duly passed by the state was not only considered, but determined to be a basis for bypassing state law should send chills down the back of anyone who believes in equal justice under the law.

Separation of Powers

This is also a poor argument, the gist of it being that one branch of government cannot limit what another can consider in the execution of its duties.

The weakness in this assertion is that the Oklahoma legislature, much like the Federal Congress, can determine what the courts will have jurisdiction over, and the amendment, at its core, removes Sharia Law and International Law from the jurisdiction of the state courts of Oklahoma.  

The actual doctrine itself is not a separate provision of the Constitution, but it is an implied one under a system of federalism.   As the SCOTUS has sometimes based rulings on the doctrine, but has at the same time allowed the erosion of actual federalism by permitting the expansion of the power of the federal government, I can see the Court perhaps ruling that the amendment does violate the separation of powers doctrine, but at the same time, I find it more likely that they will decline any attempt to dictate to an individual state how it determines jurisdictional limits for its own judiciary branch.

Supremacy Clause

“2.  This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United states, shall be the supreme Law of the Land; and the Judges in every State to shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” – Article VI, Section 2, United States Constitution.

Does the amendment violate the Supremacy Clause?  In order to determine the answer, one must first determine what the state meant when it used the term “International Law”.

The language on the ballot defines the state’s use of the term:

“International law is also known as the law of nations. It deals with the conduct of international organizations and independent nations, such as countries, states and tribes. It deals with their relationship with each other. It also deals with some of their relationships with persons.

The law of nations is formed by the general assent of civilized nations. Sources of international law also include international agreements, as well as treaties.”

Neither the amendment itself or the section of the Constitution that it amends contain any definition of the term.

As an attorney, I can see two methods which might be used to attack this amendment.  The first is couched in the admission that I have not read the Oklahoma Constitution from start to finish, and therefore, I cannot say if there is a definition section.  In the absence of one, I might argue with a straight face that it was nice of the state to define it on the ballot, but the failure to do it in the body of the document amended means that there is no precise and objective definition of “international law” for the courts to be able to recognize as inapplicable in matters before them.

The second method is that if I accept that treaties are international law, rather than agreements between nations that carry the force of law when properly executed (and ratified, when necessary), then this amendment is facially invalid.   However, a court might read the amendment through the lens of  “The courts shall not look into the legal precepts of other nations and cultures.”, and rule that the term “International Law” is defined by this clause, leaving the issue of treaties unmolested by this state action, and therefore the law could be ruled Constitutional.  

Given what I read in the various articles, and in the state’s own documents, it seems to me that the latter would be consistent with what appears to be the concern they are addressing, that being the increasing propensity of some Justices on the SCOTUS and Judges on lower federal courts to look to and consider foreign law when deciding matters in purely domestic cases.  I think it is a legitimate concern, and I think that any legislature concerned for the integrity of its own laws is perfectly justified to act in a pre-emptive manner with regard to both these issues.

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