‘Anchor Babies’, Donald Trump, and Changing the Constitution

Donald Trump has taken the position in his presidential campaign “that the 14th Amendment does not require automatic citizen citizenship for babies born in the U.S. of illegal immigrant parents.”

A mother should not be allowed to gain citizenship for her child (together with the benefits that accrue therefrom) by coming into the U.S. to give birth -- especially illegally.

The U.S. Supreme Court case of U.S. v Wong Kim Ark (1898) says otherwise.

In 1869, one year after the 14th Amendment was added to our Constitution, in an English case, Lord Chief Justice Cockburn wrote:

“By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.”

Speaking for our Supreme Court, Justice Horace Gray, in Wong Kim Ark, held that the U.S. had always followed the English rule. As such, today’s “anchor babies” would automatically be U.S. Citizens.

Mr. Trump’s position, however, finds strong support in the the dissenting opinion written by then-Chief Justice Meville Fuller. That opinion was joined in by the first Justice John Marshall Harlan -- who is generally considered America’s greatest post-Civil War 19th century judge.

Chief Justice Fuller wrote the Civil Rights Act of 1866 provided: “That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”

“The words ‘not subject to any foreign power’ do not, in themselves, refer to mere territorial jurisdiction, for the persons referred to are persons born in the United States. All such persons are undoubtedly subject to the  territorial jurisdiction of the United States, and yet the act concedes that nevertheless they may be subject to the political jurisdiction of a foreign government. In other words, by the terms of the act, all persons born in the United States, and not owing allegiance to any foreign power, are citizens.

“It is argued [in the majority opinion] that the words ‘and not subject to any foreign power’ should be construed as excepting from the operation of the statute only the children of public ministers and of aliens born during  hostile occupation.

“Was there any necessity of excepting them? And if there were others described by the words, why should the language be construed to exclude them?

“If the act of 1866 had not contained the words, ‘and not subject to any foreign power,’ the children neither of public ministers nor of aliens in  territory in hostile occupation would have been included within its terms on any proper construction, for their birth would not have subjected them to ties of allegiance, whether local and temporary or general and permanent.

“There was no necessity as to them for the insertion of the words, although they were embraced by them.

“But there were others in respect of whom the exception was needed, namely, the children of aliens, whose parents owed local and temporary allegiance merely, remaining subject to a foreign power by virtue of the tie of permanent allegiance, which they had not severed ....

“It was to prevent the acquisition of citizenship by the children of such aliens merely by birth within the geographical limits of the United States that the words were inserted.”

Two months after the Civil Rights Act was enacted, on June 16, 1866, the 14th Amendment was proposed, and declared ratified July 28, 1868. The first clause of the first section reads:

“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

The dissenters then noted that, “The act was passed and the amendment proposed by the same Congress, and it is not open to reasonable doubt that the words ‘subject to the jurisdiction thereof’ in the amendment were used as synonymous with the words ‘and not subject to any foreign power’ of the act.”

Then-Sens. Trumbull and Reverdy Johnson explained the meaning of the words.

Sen.Trumbull said, “What do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else; that is what it means.”

Sen. Johnson agreed. “Now, all that this amendment provides is that all persons born within the United States and not subject to some foreign power ... shall be considered as citizens of the United States.”

The main object of the opening sentence of the 14h Amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free blacks, Scott v. Sandford, and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States, and of the State in which they reside.

“This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof.’ The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not this subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired. To be ‘completely subject’ to the political jurisdiction of the United States is to be in no respect or degree subject to the political jurisdiction of any other government.”

Candidate Trump’s position is not presently the law. Does the Supreme Court ever overrule its prior precedents? Sometimes. It might only take one or two new justices

And “President Trump” might well be in position to appoint them. And that’s the easy way to amend the U.S. Constitution.



Posted: Saturday, September 5, 2015 11:00 pm, QCOnline.com
By John Donald O'Shea

Copyright 2015
John Donald O'Shea

'Smart' Hilary Says Some Stupid Things

Hillary Clinton’s cheerleaders forever portray her as a brilliant woman. She, herself, boasts that her ideas are "smarter."

Really?

Speaking at Georgetown University on Dec. 3, 2014, Secretary Clinton said "This is what we call smart power. Using every possible tool and partner to advance peace and security. Leaving no one on the sidelines. Showing respect even for one's enemies. Trying to understand, in so far as psychologically possible, empathize with their [our enemies'] perspective and point of view. Helping to define the problems, determine the solutions. That is what we believe in the 21st century will change -- change the prospects for peace."

Reading her Obama-esque remarks closely, what she calls “smart power” is twaddle.

“Every possible tool?” Would include biological weapons? Torture?

“Every possible partner?” Al-Qaida? North Korea?

“Leaving no one on the sidelines?” Negotiate with Islamic terrorists as they behead American captives? Slaughter female teachers in classrooms?

“Show respect for our enemies?” “Try to understand in so far as it is psychologically possible?” As they barbarically behead American captives? Burn pilots?

“Empathize” with their “perspective and point of view.” Whose view? The Islamic State's Al-Baghdadi? Boko Haram's Abubakar Shekau?

Will we allow the likes of Putin, Bashar al-Assad and Pol Pot, “to define the problems and determine the solution”? Accept their “final solution?"

Do we allow Hitler/Stalin-types or a Sharia caliphate to define for us the meaning of liberty and religious freedom?

Mrs. Clinton's words, rather than suggesting brilliance, suggest she is wantonly reckless in her use of language, naive to the point of being suicidal, or has a blithering idiot for a speechwriter. (But what of her judgment if she mindlessly regurgitates drivel written for her?)

Recall her Oct. 24, 2014 Boston speech: “Don’t let anybody tell you that it’s corporations and businesses that create jobs. You know, that old theory  -- trickle down economics. That has been tried. It has failed. It has failed rather spectacularly.”

If American corporations and business don’t create jobs, who does? Are all jobs created by the government?

Does Mrs. Clinton really believe General Motors, John Deere and our local hospitals don’t create jobs? Smart? Was she again wantonly reckless, utterly unfamiliar with who creates the vast majority of jobs in America, or is she simply repeating the blather handed her by a speechwriter?

But it’s not only her words. Her actions are more reckless. Since she became secretary of state, America’s enemies have had a field day. Russia has gobbled up portions of Georgia, Crimea and the Ukraine. Iran daily moves to having nuclear weapons. North Korea goes nuclear with impunity. Islamic terrorists are beheading Christians and Westerners throughout the Mideast, kidnapping children, bombing churches in Africa, and seizing large chunks of territory. Radical Islam is at war with America. While Americans are being beheaded, “Kumbaya” is no foreign policy.

Mrs. Clinton’s notion of smart power translates to suicide.

And now, Mrs. Clinton has enmeshed herself in an email scandal -- the same Hillary Clinton who in a June 20, 2007 campaign speech blasted the Bush administration: “Our constitution is being shredded. We know about the secret [Bush] White House email accounts. It is a stunning record of secrecy and corruption ... It is everything our founders were afraid of. Everything our constitution was designed to prevent.

So how does Mrs. Smart now justify using a secret email account, and setting up her own personal server -- which has allowed her to scrub any email that suggest wrongdoing, incompetence or corruption?

She mendaciously claims the law was changed after she resigned as secretary of state. If so, why was she blasting the Bush administration for secret emails?

The National Archives and Records Administration (NARA) in 1995 adopted regulations which require preservation of official emails created on non-official accounts. The archivist interpreted the Federal Records Act to apply to email records: “Agencies with access to external electronic mail systems shall ensure that federal records sent or received on these systems are preserved in the appropriate record-keeping system.”

Smart? It is the height of arrogance/stupidity is to excoriate somebody for doing something, and then doing the same thing yourself!

And now, on July 28, when asked about her position on the Keystone Pipeline, Mrs. Clinton answered,  "I will refrain from commenting because I had a leading role in getting that process started ... And I think we have to let it run its course ... This is President Obama's decision, and I’m   not going to second-guess him ... If it’s undecided when I become president, I will answer your question.”

Only a voter too stupid to be allowed the vote would accept this answer. Only a candidate who believes her supporters too stupid to realize that this is a dodge would say something so cynical.

The whole purpose of a presidential campaign is to educate the voters as to your platform! This is reminiscent of Nancy Pelosi's hair-brained Obamacare statement: "We got to pass the bill so you can find out what's in it." But then, if the American people will elect a candidate sans credentials on a platform of "Hope and Change" .... ?

Now, according to the Washington Post, Bill and Hillary have "earned in excess of $25 million for delivering 104 speeches since the beginning of 2014." That's $240,000 per speech! Would you pay $240K, to hear Hillary say any of the "smart" things set out here? So, why are people and foreign governments paying $240K? 

Are they attempting to purchase "smart" or "influence?"

Posted: Thursday, August 13, 2015 11:00 pm, QCOnline.com

By John Donald O'Shea

Copyright 2015

John Donald O'Shea

Living in Nation that Uses Babies for Parts

On Feb. 6, two investigators, posing as representatives of a fetal tissue procurement company, met with Dr. Mary Gatter, president of Planned Parenthood’s Medical Director’s Council, who oversees its Pasadena affiliate, ostensibly for the purpose of acquiring "intact fetal organs."

Breitbart.com suggests the video shows that Planned Parenthood Federation of America (PPFA) is violating federal law by being "in the business of selling fetal tissue for compensation."

Cecile Richards, president of PPFA, denies that: "I want to be really clear. The allegation that Planned Parenthood profits in any way from 'tissue donation' is not true."

Profit? Mere reimbursement? Moral bankruptcy? Judge for yourself.

Dr. Gatter: "Our volume ... is 800 [abortions] a year, with 60 in the second trimester. … PPFA is on board with tissue donations, but we have to ask for a waiver ... and we have to lay out ... what our program's going to be like. [Here's] the process worked out with Novogenix  ... in Los Angeles when I was there. … Heather, a Nogovenix  person would come to the site, and our staff would ... get [patient] consent. Then Heather would look at the tissue and take what she required. So logistically, it was very easy for us. We didn't have to do anything. ...

Female Investigator: "What would you expect for intact tissue? What ... compensation?"

Gatter: "What you are used to paying?

FI: "What would make you happy? What would work for you? ..."

Gatter: "OK. $75 a specimen."

FI: "That's way too low. ..."

Gatter: "I was going to say $50. ... I've been in places where they have done it for $50. But see ... we're not in it for the money. ... We don't want to be in the position of being accused of selling tissue ... On the other hand, there are costs associated with the use of our space ...."

FI: "I'd like to start at around $100.

Gatter: "Now this is for tissue you actually take; not just tissue ... where you can't find anything, right?"

FI: "What we can use. ... Intact .....

Gatter: ."Are you looking for eight and nine-week specimens, or only second trimester specimens?

Male Investigator: "Ten to twelve week ... the end of the first trimester … Intact specimens ...  we can work with."

Gatter: "If our usual technique is suction, at 10 to 12 weeks, and we switch to IPAS -- something with less suction --  we increase the odds that we will come out with an intact specimen. But then we're ... violating the protocol that says to the patient, we're not doing anything different in our care of you. ... That's kind of a specious little argument.  I wouldn't object to  asking Ian, that's our surgeon who does the cases, to use an IPAS ...  to increase the odds of getting an intact specimen. … We're signing something that says we're not changing anything ... just because you agree to give tissue. ..."

FI: "It's touchy. ...."

Gatter: "I think they're both totally appropriate techniques; there's no difference of pain involved . ... You have my email?

MI: "Yes."

Gatter: "Write me a  … proposal which I will take to Laurel and others in our organization ... Then ... I will then mention this to Ian, to see how he feels about using a “less crunchy" technique to get more whole specimens. And then ... the next step is I would need to apply to PPFA for a waiver. ... We will need to have a contract. ..."

MI: "What we have used in the past is a 'materials transfer agreement.' ..."

Gatter: "But you know that money is not the important thing for me, but it has to be big enough that it makes it worthwhile for me. ...  It's been years since I talked about compensation, so just let me figure out what others are getting. .."

Regardless of whether Planned Parenthood is making a profit or simply being "reimbursed" for its expenses, I am nauseated.

Recall Dr. Gatter's remark: "So logistically, it was very easy for us. We didn't have to do anything."

Reimbursement?

How can one be reimbursed for not doing anything? What sort of medical doctor refers to a human fetus (an unborn baby) as a "specimen?”

Isn't it the very humanity of the fetus that makes its "parts" (its liver, kidneys, brain) useful? To replace damaged parts in humans? For medical research?

Compare Dr. Gatter's practice of medicine with that prescribed by the original Hippocratic Oath: "I will give no sort of medicine to any pregnant woman, with a view to destroy the child."

Dr. Joseph Mengele, of Auschwitz fame, worked experiments on children that often caused death, and then sent their heads and organs to the SS Medical Academy in Graz for study.

How can Dr. Gatter and Planned Parenthood look at themselves in a mirror and not see Joseph Mengele?

Dr. Gatter, in my opinion, is morally blind to the humanity of the children being crushed to death in PPFA establishments.

For her, the fetus is "sub-human medical waste" -- a "specimen" -- to be disposed of in any politically correct fashion.

Donating the parts (and taking cash under the guise of reimbursement) for research or to "supply human health needs" for her is morality.

But if a fetal liver can be implanted to prevent a toddler with liver problems from dying, why can't fetal tissue be canned and shipped to Africa as food for children who will otherwise starve? If the fetus counts for nothing, what line is there other than political correctness?

If you think I exaggerate, watch the video: youtube.com/watch?v=Xw2xi9mhmuo

Posted: Thursday, August 6, 2015 11:10 pm, QCOnline
John Donald O'Shea

Copyright 2105
John Donald O'Shea

How Much Death Must One Deal to Get Life?

President Obama recently commuted the sentences of 46 criminals convicted of drug offenses; 14 were serving life sentences. In doing so, he said:

“Over the last few years, a lot of people have become aware of the inequities in the criminal justices system. The fact that we spend more than $80 billion a year incarcerating people, who oftentimes have only been engaged in non-violent drug offenses. Right now ... people all across the country are coming together with ideas to make the system work smarter, work better, and I’m determined to do my part wherever I can.

“That’s one of the reasons I am commuting the sentences of 46 prisoners who were convicted many years or in some cases decades ago. These men and women were not hardened criminals. But the overwhelming majority had been sentenced to at least 20 years. Fourteen have been sentenced to life for non-violent drug offenses. So their punishments didn’t fit the crime. And if they’d been sentenced under today’s laws, nearly all of them would have already served their time.

“I’ve made clear to them, that reentering society is going to require responsibility on their part, and hard work, and smarter choices.

“I believe that at its heart, America is a nation of second chances, and I believe these folks deserve their second chance.”


On Sunday, this newspaper published an op-ed written by Scott Reeder -- with whom I usually agree. In it, he sounded a good deal like President Obama.

“Growing up ... in Galesburg, I would look out my bedroom window at night and see ... the prison lights. I wondered why folks were locked up there. Many were there for drug crimes and other non-violent offenses. When it comes to drugs, wealthy and middle-class folks end up in rehab and low-income ones end up doing time. ...

“Prisons are taking a devastating toll on our state’s inner cities.”


On Monday, the lead editorial in this newspaper from the Seattle Times tells us it’s “Time to overhaul America’s criminal-justice system.”

“President Obama has seized on the righteous issue of mass incarceration ....
“Since the start of the war on drugs ... the population in state and federal prisons has exploded more than 500 percent.

“The lifetime likelihood for a white male to go to prison is 1 in 17; for black men, it is 1 in 3.
“If you’re a low-level drug dealer, or violate your parole, you owe some debt to society... But you don’t owe 20 years. You don’t owe a life sentence.”

The penalties in Illinois are higher for controlled substances than they are for cannabis.
They are also higher for delivery than they are for possession. Due to word limits, I am setting out only the lowest and highest penalties (not intermediate ones).

                                                  Cannabis Possession and Delivery

Possession of more than 30 grams but not more than 500 grams of any substance containing cannabis is a Class 4 felony, punishable by 1 to 3 years.  (three years in Illinois, with good-time credits means nine months). Probation is the statutorily “preferred”  sentence.

Possession of more than 5,000 grams of cannabis is a Class 1 felony punishable by four to 15 years.  (Probation preferred disposition).

Delivery of more than 10 but not more than 30 grams of cannabis is a class four felony, punishable by one to three years. (Probation preferred disposition)

Delivery of 5,000 grams of cannabis or more is a Class X felony, punishable by six to 30 years.  (Class X felonies carry no good-time credits; probation not possible).

                                                 Cocaine Possession and Delivery

Possession of more than 15 but not more than 100 grams of any substance containing cocaine carries 4 to 15 years. (Probation preferred disposition)

Possession of 900 grams or more of any substance containing cocaine carries 10 to 50 years. (No probation)

Delivery of 1 gram or more but less than 15 grams of any substance containing cocaine carries 4 to 15 years. (Probation preferred disposition if less than 5 grams. No probation, if more)

Delivery of 900 grams or more of a substance containing cocaine carries 15 to 60 years. (No probation possible)


Thirty grams is roughly 1 oz., 500 grams is roughly 1 lbs. and 5,000 grams is roughly 10 lbs.


In the years I was on the criminal bench, I don’t ever recall sending a true first- offender to prison for a Class 4 felony possession of cannabis. They got probation.


And generally, if they had no other record, they got more probation if the violated the first probation by getting caught with more cannabis. We realized that it cost about $30,000 a year to send a convicted criminal to prison.

But often, the first-time cannabis offender had a prior record of other crimes. And it is not honest to call a guy with two prior burglary convictions a first-time offender simply because this is his first conviction for possession of cannabis.

Similarly, when a guy on probation for cannabis possession got re-arrested and shipped to prison for pistol-whipping a rival drug dealer on a street corner, it is at best a half-truth to say he was  imprisoned for a non-violent drug offense.

It is asserted that “Prisons are taking a devastating toll on our state’s inner cities.” I would suggest that drug trafficking and the related violence is taken an even greater toll. The Chicago gangs are fighting and killing people over who controls the drug traffic. A lawyer friend of mine, now a judge, once told me that when people get “hooked on crack, it becomes their God.” Delivery of a drug of that sort is a non-violent crime in name only. Is it worse to destroy a person by selling him crack cocaine than it is to shoot him? Cocaine destroys not only the user, but the lives of spouses and children.

It is said that, the “lifetime likelihood for a white male to go to prison is 1 in 17; for a black male, it is 1 in 3.” But if 1 in 3 black males (or 1 in 17 white males) are going to prison, doesn’t that at least mean that 1 in 3 black men (or 1 in 17 white men) have committed a crime that a judge -- white or black -- deems proportionate with incarceration? 

And while drug treatment was an option for the “rich,” it was also available for the indigent.

The president says he believes that his 46 criminals serving 20 years to life “deserve their second chance.” To do what? Live good lives, or resume their lives of crime? And how does someone get 20 years or life for a first-time non-violent drug offense? How much “death” do you have to “deal” to get “life?”

And if it costs 80 billion to incarcerate, what will it cost the public in property and destroyed lives if we empty the prisons of the so-called non-violent drug offenders? Chicago is the poster child.

Posted: Friday, July 31, 2015 11:00 pm

By John Donald O'Shea

Copyright 2015

John Donald O'Shea

Same-sex Marriage Ruling Carries Risks

"President Obama now says that it is important for him to affirm that same-sex couples should be able to get married. As such, for him, 'marriage' is now nothing more than a union between any two consenting adults. So, then, what is the President’s position on polygamy? Is it  'evolving,'as well? If so, why is the number 'two' sacred? If 'consent' between 'adults' is the key, what’s wrong with consensual polygamy?" -- John Donald O'Shea,  May '12,  "Is polygamy a constitutional right?"

The U.S. Supreme Court in Obergeffell v. Hodges (2015) has now held that two people of the same sex have a constitutional right to marry. Do you see any problems with that holding? Risks?

If fundamental liberty requires that any two (competent) consenting individuals must be allowed to marry, how can there be a bar to the marriage of three -- or more -- (competent) consenting adults?

What constitutional principle demands that any two consenting adults must be allowed to marry, while at the same time denying the same fundamental liberty to three or more consenting adults?

If the sex of the partners is irrelevant, and if all that is required of the two people is their consent, how can three or four — or more — consenting adults be barred from practicing polygamy?

Justice Anthony Kennedy, writing for the majority in Obergeffell, largely ignores those questions.

Chief Justice John Roberts, in dissent, however, squarely addresses the polygamy (plural marriage) question, with emphasis on the “historical aspect of marriage being between a man and a woman for over a 1,000 years.”

“One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people.

“Although the majority randomly inserts the adjective ‘two’ in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not.

“Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world.

“If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.”
The chief justice then examined the majority’s justifications for same-sex marriage, and shows they would also justify polygamy.

“It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.

“If ‘there is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,’ why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry?

“If a same-sex couple has the constitutional right to marry because their children would otherwise ‘suffer the stigma of knowing their families are somehow lesser,’ why wouldn’t the same reasoning apply to a family of three or more persons raising children?

“If not having the opportunity to marry ‘serves to disrespect and subordinate’ gay and lesbian couples, why wouldn’t the same ‘imposition of this disability,’ serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?”

So if two consenting adults have a constitutional right to marry, why not three? Is two more sacred than three? More constitutional? If the states can’t constitutionally define marriages as being “between a man and a woman,” what constitutional principle  would allow same-sex marriage, but bar polygamy?  Is the harem now legal in America?

Justice Kennedy, speaking for the majority, also gives a fourth justification: “With respect to this asserted basis for excluding same-sex couples from the right to marry, it is appropriate to observe these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.”

But to say there is no risk of harm to third parties is absurd. Already a baker in Oregon has been assessed $135,000 in damages for failing to cater a same-sex marriage. If that verdict stands, Justice Kennedy’s assertion that the right of two consenting adults poses “no risk of harm to third parties,” comes from five judges wearing blinders.

Nor does Justice Kennedy fear for the First Amendment religious rights of people opposed to same-sex marriage.

“Finally, it must be emphasized that ... those who adhere to religious doctrines, may continue to advocate ... that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to  teach the principles ... central to their lives and faiths, and to their own deep aspirations to continue the family structure.”

Justice Kennedy reassures Americans that may still believe and teach that same-sex marriage is wrong. But do you see any assurance that Americans can still engage in the free exercise of their religion -- also guaranteed by the first Amendment -- by refusing to participate in or assist in a same-sex marriages?

Certainly the Oregon Labor Commission didn’t. How else do you explain their $135,000 damage assessment? What about contentious objectors? Does not the free exercise of religion guarantee the right not to participate -- to contentiously object? To not seemingly approve?

Make no mistake: I am not opposed to people or their legislators permitting same-sex marriage. That’s called democracy. The issues raised by Justice Roberts and the Oregon damage award spotlight the folly of judges deciding public policy questions and creating new constitutional rights under the guise of interpreting  the constitution.

Posted: Friday, July 17, 2015 11:00 pm, QCOnline

By John Donald O'Shea

Copyright 2015

John Donald O'Shea

Marriage Ruling, Constitutional Law or "Putsch?"

               " ...  nor shall any State deprive any person of life, liberty, or  property, 
               without due process of law; nor to deny to any  person within its 
               jurisdiction the equal protection of the laws."
                                                                      -- U.S. Constitution, 14th Amendment




On June 26, the U.S. Supreme Court in Obergefell v. Hodges, held “[T]he right to marry is a fundamental right inherent in the liberty of the person. Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry.”

Regardless whether you favor or oppose same-sex marriage, this decision is terrible constitutional law. (Note: I am discussing only constitutional law; not whether same-sex marriage is right or wrong.)

My test of whether something is constitutional or not, is answered by this simple question:

If the people who ratified the constitution, and later approved the 14th Amendment in 1868, had known at those times that the Constitution and the amendment would subsequently be given the interpretation that the five judges in this case gave it, would they have ratified the Constitution or approved the 14th Amendment?  In ratifying the 14th Amendment, did the American people ever, for an instant, dream that the word “liberty” as used in the amendment encompassed the right of same-sex couples to marry?

In a democracy the people -- not the judges —-- have a right to rule. Our Constitution, and our state constitutions, give the people and their elected representatives the power and the right to make the laws. The judges have a sworn duty to support the Constitution; not to rewrite it. There is nothing more destructive to the concept of constitutional government  than five unelected judges ignoring the intent of the people who ratified the Constitution and amendment, and giving it their own more enlightened modern-day interpretation.

When judges “discover” a heretofore unknown constitutional right, they strip the people and their  elected representatives of power to decide the question for themselves.

Justice Anthony Kennedy, author of the majority opinion writes:

“The generations that wrote and ratified the Bill of Rights and the Fourteenth
Amendment did not presume to know the extent of freedom in all of its dimensions,
and so they entrusted to future generations a charter protecting the right of  all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

“The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.

“The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws.”


So would the people who ratified the Constitution (or the 14th Amendment) have done so, if before they voted to ratify, they had been told that someday five judges  -- armed with “new insights” -- would say the word liberty as used in the Constitution includes the right of same-sex couple to marry?

Stripped of all legal gobbledygook, what Justice Kennedy really means is that the people who wrote the Constitution and the 14th Amendment were too benighted to understand that that liberty — as they used the term — meant the right (liberty) of people to contract same-sex marriages and that it was the duty of five 21st-century judges with new insights and a better formed understanding to fix that omission, even if it meant unelected judges ignoring the intent of the American people who ratified the Constitution, and later, the 14th Amendment.

In his dissent, Justice Anontin Alito excoriates what he labels “judicial hubris.”


“But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since.

"They see what lesser legal minds -- minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly -- could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them [i. e., the five unelected judges composing the majority] the power to remove questions from the democratic process when that is called for by their ‘reasoned judgment.’ These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.”

Today, many Americans are ecstatic. But if five judges can redefine “liberty” to encompass same-sex marriage, tomorrow five other judges can redefine “person” to exclude blacks and fetuses, as they did in the Dred Scott and Roe v. Wade opinions. Today’s benevolent oligarchy, can all too easily become tomorrow’s tyranny.

By the way, “putsch” means “a violent attempt to overthrow a government.”



Posted: Friday, July 10, 2015 11:00 pm - QCOnline
By John Donald O'Shea




Copyright 2015
John Donald O'Shea

Save the Polar Bears, Murderers; Abort the Fetuses

         

More than 50 million fetuses have been aborted in America. Does anybody care? Can minds be changed?

On May 6, 2015, the New York Times, citing the New England Journal of Medicine, wrote,

"A study of thousands of premature births, found that a small minority of babies born at 22 weeks who were medically treated survived with few health problems. ...  Leading medical groups had already been discussing whether to lower the consensus on the age of viability, now cited by most medical experts as 24 weeks."

The U.S. House recently passed the Pain-Capable Unborn Child Protection Act, to restrict abortions after the fifth month of pregnancy. Should it pass the Senate, the president -- who has opened the borders to save Central American Children --  threatens to veto it.

In the encyclical Laudato Si, Pope Francis has now tied saving the planet with saving unborn children:

"Since everything is interrelated, concern for the protection of nature is also incompatible with the justification for abortion. How can we genuinely teach the importance of concern for other vulnerable beings ... if we fail to protect a human embryo? ... If personal and social sensitivity towards the acceptance of the new life is lost, then other forms of acceptance that are valuable for society also wither away.”

So, will what doctors, Congress and the pope have to say change any minds?

Are humans -- including fetuses -- animals? The People for the Ethical Treatment of Animal's website inanely makes clear that the questions are irrelevant.

"PETA does not have a position on the abortion issue, because our focus ... is the alleviation of the suffering inflicted on nonhuman animals. … And just as the pro-life movement has no official position on animal rights, neither does the animal rights movement have an official position on abortion."

You would think the ACLU might care. After all, its Capital Punishment Project works toward the repeal capital punishment. Indeed, the ACLU claims,

"The death penalty in America is a broken process. … Death sentences are predicted not by the heinousness of the crime but by the poor quality of the defense lawyers, the race of the accused or the victim, and the county and state in which the crime occurred. From 1976 to 2015, 1,392 executions occurred in the United States, and 995 of them took place in the South. Time and time again, we have proven that the criminal justice system fails to protect the innocent and persons with serious mental disabilities and illnesses from execution. … Every method of execution comes with an intolerably high risk of extreme pain and torture.”

The ACLU states that in the U.S. during a 30-year period, there were 1392 executions; since Roe v. Wade there have been more than 50 million fetuses executed. It claims, "Death sentences are predicted not by the heinousness of the crime.” But the death sentence can be imposed only for a conviction of murder; are not all murders heinous by definition?

The ACLU is concerned about "the poor quality of defense lawyers.” But the murder defendant at least gets a lawyer -- unlike the fetus. And why is the race of the victim and the county and state involved of more consequence to a murderer than to a fetus?


The ACLU argues "the criminal justice system fails to protect the innocent."  Is the fetus less innocent than a murderer?


Is application of the death penalty in a murder case, after innumerable appeals,  more random than an abortion performed on a mother's whim?

What is the ACLU's position on late-term abortion?

"The ACLU opposes the so-called Partial-Birth Abortion Ban Act of 2003 … because it outlaws safe abortion procedures and thus threatens women’s health and reproductive rights. ...  it bans safe and common abortion methods used in the second trimester of pregnancy, well before fetal viability. It also lacks an exception to protect women’s health.”

But the act would also ban abortions on "viable" children, and third-trimester abortions. Are a mother's health and reproductive rights more important than the rights of a child not to be exterminated?

According to National Right to Life organization, during a partial birth abortion,

"The abortionist punctures the base of the baby’s skull with a surgical instrument, such as a long surgical scissors. ... He then inserts a catheter (tube) into the wound, and removes the baby's brain with a powerful suction machine. This causes the skull to collapse."

How many abortions are really necessary and performed to save the life or health of the mother?

Do churches really care? The pope has jumped aboard the planet-saving bandwagon, linking abortion with saving the planet. How many of those who march carrying placards demanding that we save the planet, whales and lab rats give a damn about saving unborn babies, who are scientifically
demonstrably human? How long has it been since you heard a homily condemning abortion? Urging the congregation to vote against a party or candidate who is pro-abortion?

I have previously argued that the fetus is unquestionably  -- as a matter of science -- more than a part of it's mother. It unarguably also carries its father's DNA. Ipso facto, it is a human being, distinct from both its mother and father.

The world condemns Hitler because he treated Jews as subhuman, and the slavery of the antebellum South because it regarded blacks as subhuman. We are appalled at the carnage of the Islamic State, which treats non-Muslims as subhuman.

So,  why does a convicted murderer have more human worth and evoke more compassion than an innocent fetus?

If we kill our children, how can our nation claim the high moral ground? Today, in America, more opprobrium attaches to kicking a cat.


If morality is not dead in 21st century America, then how can we ignore the pope when he asks, "How can we genuinely teach the importance of concern for other vulnerable beings … if we fail to protect a human embryo?"

Posted: Tuesday, July 7, 2015 11:00 pm QuadCitiesOnline

| Updated: 11:00 pm, Tue Jul 7, 2015. 

By John Donald O'Shea

Copyright 2015

John Donald O'Shea