Sunday, September 18, 2016

My Sunday Feeling

"This is not Rome. This is the Republic of Ireland 2011. A republic of laws...of rights and responsibilities...of proper civic order..."

                           Irish Secretary of State Enda Kenney


"Which is more important to you, (sic) the Bible or the US Constitution?"

                           Facebook post earlier this month

In 2011, the Irish government excoriated the Vatican for allegedly attempting to block the investigation by the civil authorities of child abuse by clerics.  The church was told in no uncertain terms by a righteously indignant, I mean no pun, Enda Kenney that the civil law prevailed when it came to the safety and protection of children.  Of course, the negative pregnant in Kenney's remarkable (by Irish standards) pushback to Rome was that civil law was primary in all matters involving "rights and responsibilities" and "proper civic order."

I thought of the words of the Taoiseach (look it up) when I saw the above-referenced post on Facebook.  

For some people, everything is a zero-sum game.  Right and wrong.  Black and white.  

Which is more important to you?  The Bible or the US Constitution?  

One wonders what is going on out there that would prompt someone to ask such a question.  One can sense a certain paranoid construct in which such a question can live and do well.  A law may be constitutional but it might also be contrary to the Bible.  Or to a particular reading of the Bible.  In that case what?  Your personal morality trumps the civil law?  Indeed, there have been laws passed in a couple of states that say just that. 

And the most famous example of this theory was the decision by county clerk Kim Davis not to issue marriage licenses to same sex couples because to do so would offend would allegedly offend her deeply held religious beliefs.  

I prefer a more nuanced approach to the post to the extent a) the Facebook poster is serious and b) it is even a question.  

To borrow the wonderful phrase from Stephen Jay Gould, the Bible and the US Constitution serve different magisteria.  The Bible concerns matters of spirituality and morality.  The Constitution and the laws passed pursuant to it concern "rights and responsibilities" and "proper civic order." They are accorded primacy in that realm as the United States, like Ireland, is a republic of laws. 

And by the same token, the law protects the typical exercise of the believer's faith.  I can attend the church of my choice.  I can send my kid to a parochial school.  Conversely the law protects my freedom to play golf on Sunday instead of going to church if I so please.  Further, while I am free to believe or to not believe, I do not have the unfettered discretion to act on those beliefs.  My deeply held belief that the use of marijuana is integral to the practice of my religion is no defense if I am being prosecuted on a dope charge.  

Just for the record, I am a Methodist.  We do not smoke grass in church.  I raised a hypothetical.  I'm a lawyer.  We do that.  

So why am I making a big honking deal out of gibberish on Facebook?  Because it seems a lot of our national discourse about serious things takes the form of posts on Facebook or through tweets on Twitter.  But everything can't be a zero sum game.  Serious questions cannot be resolved in a sound bite. 

I talked about the post in question with one of the history teachers at school the other day.  Here's our response.

Which is more important to you?  The Bible or the Constitution?

Our answer is "yes."






  















Sunday, September 04, 2016

My Sunday Feeling



A buddy of mine sent me this picture yesterday.  The house in the picture is not too far from where I live.  In fact, I recognized it from the times I have gone past cutting through to Mississippi Avenue or Leawood.  The rather, shall we say, aggressive, signage was not observable when I went by it the other day.  So this must be a fairly recent bit of home decoration.

Now let's get something out of the way right off the bat.  The owner of this house has every right to put any kind of political stuff on his house or yard as he sees fit just so long as it doesn't violate any zoning regulations pertaining to such matters.  It's his or her First Amendment right to do it.  And what he chooses to advertise is pretty much his business and means nothing to me other than I must note that he evidently went to some trouble to do it.  So there is no doubt in my mind that he is earnest in his beliefs.

The notion that Hillary Clinton should be in prison is a recurrent leitmotif in the political discourse on the far right hand side of the dial.  Those who allow their paranoia to fully blossom into full flower rather view her continued freedom to be "proof" that the system is rigged. Further, if Donald Trump is defeated in the race for the White House, which seems likely, some of these folks that subscribe to this notion will view at further "evidence" that the fix was in.  Indeed, Mr. Trump has said as much.  

As far as I can tell, the reason that Hillary should be locked up has to do with her handling of the Benghazi tragedy during her tenure as Secretary of State or for her use of a private email server to conduct classified government business.  Never mind that the Benghazi situation has been investigated to a fare-the-well by the Congress with no criminal referrals. And, while the FBI found that she had handled classified material in a careless fashion it declined to make a criminal referral either.  

And, as far as I can tell, there is this notion that because of these defaults on her part, or combination thereof, Hillary Clinton is guilty of treason.  I have even read where some Trump supporters have expressed the opinion that she should be either shot or hung for this reason.  

I make reference from time-to-time to the fact that I was horribly miscast last winter as an American history teacher.  I do this because it is was one of the more singularly profound, if not holy, experiences of my life.  That, and the boys and I spent many an afternoon discussing the issues of the day which included the Presidential primaries on both sides.  The "Hillary is guilty of treason" thing popped up occasionally but not often as most of the kids were Rubio supporters in those days.  

This was a teachable moment.  Especially since this discussion about treason popped up about the time we learning about the treason trial of Aaron Burr.  I am as neutral as Switzerland when it comes to politics in the classroom.  However, I made no particular secret of my fondness for Aaron Burr in those days. 

After all, you have to admire somebody who tries to fix a Presidential election-talk about rigged-, survives two duels one of which was with the Secretary of the Treasury who he plugged, attempts to get both France and England (and Mexico if I remember correctly) to attack the United States, and when they all refused did it himself.  This latter episode landed him in hot water with Thomas Jefferson, who had very little use for Burr in the first place mainly over the fixing-the-election-thing.  

And so, being a lawyer, I beat my classes over the head about what the Constitution of the United States of America says about treason. Because treason is a crime and crimes are defined in the law and not what 2 guys in a bar might think.  

Article III, Section 3 says "Treason against the United States,shall consist ONLY in levying war against them, or adhering to their enemies, giving them aid and comfort...(emphasis supplied)."  As I told my classes back then if they didn't go to bed that night with these words ringing in their ears then I had not done my job.

So while whatever alleged misdeeds committed by Hillary as Secretary of State might have been the result of negligence, miscalculation or plain dumb bad luck, the don't amount to criminal acts according to the numerous investigating bodies that lucked into them.  And they sure as hell weren't acts of treason.

And so I say to the owner of the house depicted above what I said to a kid the other day.  If you truly believe that Hillary Clinton's conduct in the discharge of her duties as Secretary of State disqualify her for the Presidency then you have the duty to walk into that voting booth and proudly make your ballot against her.  That is your sacred right as an American and that decision is between you, your God and nobody else.  

But she ain't guilty of treason.  Because treason consists ONLY of levying war against the United States or giving aid and comfort to its enemies.

Neither was Aaron Burr as it turned out.  He was acquitted by none other than John Marshall who presided over his trial for reasons that remain unclear to me since he was a Supreme Court Justice.  Anyway, President Jefferson was rightly incredulous when Burr got off because Aaron Burr was about as guilty as he could have possibly been without a youtube video depicting him and his band of rebels floating up the Mississippi being entered into evidence.  Afterwards, Jefferson wrote an irate letter to Justice Marshall in which he inquired, in so many words, if Aaron Burr could walk under those facts, what did it take to get found guilty of treason around here? 

History is silent as whether Mr. Jefferson got a response.  

I judge it to be a dangerous fantasy to impute criminal liability for political acts or for acts nominally taken within the course and scope of one's authority under the law.  When people running for office suggest as much, it is irresponsible.     

As for me, I am counting the days until this election is over and I can watch sports with the sound on again.  

  








Tuesday, August 09, 2016

We Must Be Friends

"We must be friends, not enemies."
                                             Abraham Lincoln-First Inaugural Address

"Hillary wants to essentially abolish the Second Amendment.  By the way, if she gets to pick, if she gets to pick her judges, nothing you can do, folks.  Although the Second Amendment people, maybe there is. I don't know."
                                              Donald J. Trump


It was my privilege to teach high school American history for a brief period of time.  When I was dropped in there, we explored the run-up to the Civil War.  I told the kids about how Lincoln was desperately trying to get the Union to hang together   And about how the Southern states left as soon as Lincoln took his hand off of the Bible. And off we went to the Civil War.  

"We must be friends, not enemies."

Honest to God I was as neutral as Switzerland with my classes.  I turned the liberal kids around as much as the conservative kids.  And I was in my happy place when I walked through the room putting hands on shoulders as I moderated and told yellers to shut up. 

God.  What fun.

But I have been around for some 60 years.  

And I have never seen once in my lifetime a major Presidential candidate insinuate that violence is the appropriate response to the outcome of an election.  And that's what Trump is suggesting.  Although I don't think he believes any of this.  Really. I don't. But his nutbar constituency  does. 

Good thing I'm not teaching anymore I guess.  I am an American.  I love my country. 

I would have to tell the kids what I think.  And why.  

Just as well.  




























Sunday, August 07, 2016

My Sunday Feeling



42 U.S.Code Section 1983 states in material part (as they say) that "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, of the District of Columbia, subjects, or causes to be subjected, any citizen of the United States...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..."

The First Amendment to the Constitution of the United States of America gives us freedom of the press, to petition the government for redress of grievances and freedom of speech.  These are basic bedrock freedoms we enjoy as Americans and they are given the highest level of protection.

Except in Terrebonne Parish, Louisiana.

The image of the small town law enforcement officer as some bumbling Barney Fife type has slowly been eroded over the years.  However, recent actions by the High Sheriff of Terrebonne Parish, a man by the name of Jerry Larpenter, have done much to revive that old unfortunate stereotype.

Carpenter got high pissed at a muckraking blog out of the Parish seat of Houma called Exposedat that aimed political corruption stories at Larpenter and some of his business associates along with other Parish political figures.  You can find it here at http://exposedat.in/wp . So, he ginned up a phony baloney criminal case of criminal defamation (I didn't even know such crimes were still on the books) of the PARISH'S INSURANCE AGENT against a local man he suspected of running the blog, obtained search warrants THAT A JUDGE ACTUALLY SIGNED OFF ON, and sent deputies out to the suspect's house to execute the warrants.

This being Louisiana and all, it should be noted at this juncture that the target of the investigation is a Houma police officer who used to be a Terrebonne Parish Sheriff's Deputy and New Orleans cop.  Make of this as you will.  

The deputies sent to execute the warrants seized two laptops, one of which belonged to the target's daughter, and 5 cell phones.  

The reason for these, shall we say, robust law enforcement activities?  Let the High Sheriff explain it.

"If you're gonna lie about me and make it [sic]under a fictitious name, I'm gonna come after you."  

And with the full weight and authority of the police powers of the State of Louisiana he should have added.  The language quoted above?  I predict that Mr. Larpenter, who may not be the brightest guy to ever put on a badge but that's just me, will come to rue dearly that he said that.

Because guess what?  Mr. Larpenter and Terrebonne Parish just bought themselves a 1983 suit, the pertinent language of which is cited above.  This is not even how you go about investigating crimes involving computers or other communication devices in the usual case.  9 times out of ten the cops issue an investigative subpoena against the Internet or cell phone providers.  They have the data.  But maybe computer records were not all the Sheriff was looking for.

That's how bad this is.  Mr. Larpenter used the power of the state to seize the target's property with the evident intent of silencing him in manifest violation of his First Amendment rights.  At least that's how it looks to me.

Had Mr. Larpenter had the foresight to consult me, or someone reasonably competent even, I would have advised him that the Federal Courts take an exceedingly dim view of attempts by governmental entities to criminalize political speech.  In any event I hope he likes New Orleans.  Because unfortunately for him, he and his big mouth are likely destined to spend time in the United States District Court for the Eastern District of Louisiana defending any of a number of actions either brought by the target or the United States for violating the target's civil rights.  

What about the Judge you may ask? 1983 carves out an exception for judicial acts.  And it is a good thing he's immune.  Because, according to one of my little lawyer friends down there, the target got a hearing for the purpose of getting the warrants rescinded and at the conclusion the Judge wouldn't do it.

A common misconception held by young students, and Sarah Palin come to think of it, is that private entities can violate your First Amendment rights.  For the most part this is not true.  If I write a letter to the editor complaining about my boss at the lumber yard, and he fires me, that doesn't violate the First Amendment.  No.  Your rights of free speech guaranteed by the First Amendment are implicated only if the government kicks your door down and confiscates your printing press.

Kinda like what went down in Houma the other day.  

Just when you think it can't happen in this country, it happens.  

Just a little something else to think about on Election Day.


Sunday, July 24, 2016

My Sunday Feeling


That didn't take long did it?  

Yesterday former KKK leader David Duke crawled out from under a rock somewhere in St. Tammany Parish to announce that he was running for the  Senate seat vacated by the equally loathsome David Vitter down there in the Pelican State.  In his remarks to the press after filing he stated that he was running "because the climate in this country has moved in [his] direction."  The nomination of Donald Trump as the standard bearer of what was formerly referred to with a straight face as the "Party of Lincoln"was all the proof he said he needed of this.  

I've written about Duke before.  Back when I was at Tulane, Duke owned and operated a bookstore in Metarie which specialized in white supremacist literature in Metro.  I seem to recall that he and some other "boys in the hood" came on campus for a demonstration which didn't amount to anything.  Tulane, being a private school, did not have-shall we say?-the constitutional duty to let Duke exercise his First Amendment rights on its campus.  Also, rumor had it back in those days that he was an informer for the FBI.  

So actually, there's nothing you could tell me about Mr. Duke that I wouldn't believe.  I think he's a stone con artist who may or may not believe the stuff he puts out.  But don't take my word for it.  

Because David Duke is a felon.  He did time as a guest of the Feds after pleading guilty to mail fraud and filing a false income tax return in 2002.  During 1993 to 1999, he convinced his weak-minded followers who weren't otherwise tapped out from giving to televangelists that he was broke and about to lose his home.  

This, of course, was not true.  

Indeed he had sold his home for a profit.  So what did he use the money for?  Gambling at casinos for the most part.  Really. And now he has the gall to run for the United States Senate.  

Then again, this is Louisiana and he is running to replace a scumbag like Vitter.  

Anyway, you would think that disavowing the candidacy of a racist criminal like David Duke would be the easiest thing in the world.  Indeed, it is for this reason that the Louisiana GOP and the Republican National Convention swiftly did just that.  I'm writing this at 5:30 CDT Saturday evening.  I checked before sitting down at the laptop and as of this writing we haven't heard "boo" out of the Trump campaign on this issue.

I mean, what is so hard here? Is it easier to refer to Hillary Clinton as "crooked?" How so?  David Duke DID TIME FOR SWINDLING HIS CONSTITUENTS OUT OF MONEY.  "Hillary as crook" may be a meme that resonates to those in the GOP that require red meat in their diets.  Duke's criminality, along with his racism, real or showbiz, are a matter of public record. 

So what's so hard Donald?  Maybe sometime tonight I will read that you indeed joined the GOP establishment (for once) and that you have denounced David Duke's candidacy.  Good for you.  What took you so long?

To me, that's the issue.  Duke does not have a snowball's chance in Hell of pulling this off.  He's been running for statewide elections and losing down there for as long as I can remember.  

Nope. To me the issue is what's taking Trump so long to denounce David Duke and his assertion that the advent of Donald Trump as presidential timber proves that the country has moved in Mr. Duke's direction?

How is this hard?

I mean really?





Sunday, July 10, 2016

My Sunday Feeling



Sometimes words are inadequate.  Or at least they are in the hands of someone as unskilled as me.  

What a terrible week for institutional America.  Or what is left of it.  

I'm just kind of numb.  

M said that she just wants to gather her family in and protect it.  She graciously includes me in that number.  But we both know she can't do that.  We know we have to go out into the world.  

But what a world.  

The Presidential election has already worn me out.  And it is not yet August.  The presumptive nominee of the Republican party is a xenophobic narcissist par excellence who consorted with mob types in his real estate career.  He is easily the least qualified candidate for the Presidency since-I dunno-I'm thinking-I dunno.  Hellfire.  Even Aaron Burr had qualifications. And now what the R's refer to still with a straight face as the "Party of Lincoln" even as their presumptive standard bearer is the second coming of IL Duce.  

On the other side of the coin, Hillary and her omnipresent shadow Bill, can't keep from shooting themselves in the feet when they could be coasting to the finish line.  My original plan a couple of days ago was to give a lawyerly explanation of why there was no criminal case against Hillary.  As in nada.  Zero.  Not from the criminal side.  Not from the Constitutional side.  Complete probable loser from the prosecution trial prep side of it.  

But that would have resulted in the usual Facebook explosion.  And I don't care enough about somebody who can't seem to stay out of her own way at times to waste time defending her.  Not that I would be defending her.  I would just be explaining things.

But then again, facts don't matter.  


Really.  Facts don't matter.  Not in a world where some folks consider it unfairly divisive to consider that a disproportionate number of black folks seem to get whacked during routine traffic stops.  Not when a Trump billboard around Morgan says that "The Only Reason That Hillary Isn't In Prison Is Because She Is A Female Democrat."  

Really?  That's what politics have dumbed down to?  

And then in Dallas cops, providing security for a peaceful march protesting the aforementioned, get gunned down by an African-American Army vet trained in the use of a tactical weapon who wanted to kill white cops.  Parse that sentence if you will. Oh. And get this.  There just happened to be an African-American guy wearing camo in the vicinity who was openly and legally carrying an AR-15.    Which in Texas you can do.  Talk about timing.  He immediately became a suspect.  As the kids say, "Yeah, right?"

Yeah, no.  This idiot, who is lucky that he wasn't blown into next January, is talking about suing for defamation.  Of course he is.  Is this a great country or what?

The police eventually sent a robot armed with a bomb to explode in the area in a parking garage in which the shooter had barricaded himself.  

Predictably, there was stuff on FB about how this was excessive force.

Like hell it was.  The line between law enforcement and war got really thin at that point.  I'm good with the resolution.  Then again I'm a law enforcement person.  I'm also widely considered to be what passes for a "liberal." I see no contradiction. Why is everything a zero-sum game?

I'll tell you why.  Because you don't have to think when you reduce the world to black and white. 

M is a woman who in the words of a friend upon meeting her said she "radiates peace." M's immediate reaction to all of this madness is to express a desire to, as I said, gather us all unto herself.  

But she is a Deacon in the One True Universal and Apostolic United Methodist Church. She knows the world must be confronted.  Me too.  We just confront it in different ways.  

But for now, with all of this sadness.  With all of this lunacy on the Internet passing for journalism.  With all these experts in the criminal law popping off on Facebook. 

I'm just numb.  

So I'm good with M pulling me and her kids within the arc of her long arms.  

I'm lucky.  It passes for safe.  It will do for awhile.  



























Sunday, June 26, 2016

My Sunday Feeling


The Washington Post referred to it as "economic insanity."  Stephen Marche of Esquire Magazine referred to it as "economic suicide."

The "it" referred to hereinabove is Great Britain's inexplicable decision rendered by its body politic to leave the European Union.  Well, the decision is explainable.  It's just not a very good explanation.  What it came down to is that the people that backed Britain leaving the EU, or "Brexit" to use the acronym, convinced a slim majority of British voters that a vote to exit was to cast off a meddlesome and officious foreign bureaucracy from the back of John Bull. It was also a referendum on the EU's liberal migration policies within the 28 nation bloc.  

Except there is this.  As Laurie Penny wrote in the New Statesman Friday morning, the vote was a not a referendum on the EU.  "It was a referendum on the modern world, and yesterday the frightened parochial lizard-brain of Britain voted out, out, out and today we've all woken up still strapped onto this ghost-train as it hurtles off the tracks."

The ghost train to which she refers is the one that left an economic bloc with a population of 508 million and a GDP of 17 trillion to go it alone.  The ghost train left in its wake-which, of course, assumes that trains leave wakes-a pound note that went through the floor almost immediately as prophesied by experts,more on that later, and has the Scots and Northern Ireland looking at ways to stay in.

God what a mess this could very well turn out to be.  

But I believe Ms. Penny is on to something.  The vote to exit the EU was a vote against the modern world with its emphasis on empiricism and expertise.  A world which is not exclusively white, male and straight.  

Predictably, as night followeth the day, Donald Trump, speaking in Scotland for God's sake, a Scotland that voted to stay in the EU, claimed that the vote was proof that "people want to take their country back" a none too subtle variant on his campaign promise to "Make America Great Again" a theme which resonates for a goodly number of voters here on this side of the pond.  Overwhelmingly older, less educated and white voters.  

So, in light of the stunning events in GB last week, the question not an inconsiderable number of folks are asking is whether a vulgarian like Trump can seize upon the momentum generated over there and get propelled into the Oval Office here?

Probably not.  It is because the Founding Fathers, particularly Alexander Hamilton, did not especially trust the electorate when it came to electing a President.  They feared that the masses could be manipulated by a future tyrant.  So the Electoral College got put into the Constitution.  And the states with the greatest number of electoral votes have not been in play for the Republicans for years.  It is hard to believe that this will change with a narcissistic xenophobe (Or one who panders to xenophobes at least. Who knows if Trump actually believe a third of this crap he's putting out?) at the top of the ticket.

Populist nationalist fervor can get issues like Brexit passed.  It is not enough-and least not in my lifetime-to get a President elected.

The vote on this year's Presidential race, like the vote on Brexit, will be a referendum on the modern world.  Will we look backward or forward? 

The Founding Fathers were always looking forward.  And we can thank them for ordaining a Constitution that protects us from ourselves.