As you look at today's Prop 8 ruling, I want you to think back a few weeks to the Massachusetts Defense of Marriage Act (DOMA) rulings for a bit of legal logic that will make a huge difference as this case moves through any appeals process.
What I want you to think about are two moderately obscure concepts: "strict scrutiny" and "rational basis". The difference between the two will tell us how hard Prop 8 will be to defend, and we'll quickly walk through what you need to know, right here, right now.
We are back, just a bit late, to wrap up the discussion we began about the pair of rulings issued in Boston by Federal District Judge Joseph Tauro this week that declare the federal Defense of Marriage Act (DOMA) unconstitutional.
I don't usually tell you the end of the story at the beginning, but this time I will: there are a lot of happy Plaintiffs this week, and the Federal Government, as Defendant (whom I will refer to as "the Feds" from time to time), is not so happy at the moment.
As with last time, there's a lot of ground to cover, and the sooner we get to it, the better.
So a Supreme Court justice that hardly anyone noticed has announced his retirement and all of a sudden the lips of The Experts are all a-flutter with the word "Empathy".
President Obama reports he wants his nominee to have it; and Republicans are convinced that the word is a secret code for something that eventually ends in the death of free speech, massive roundups of guns by the Secret United Nations World Police, and the Internment Of All The White People In Reeducation Camps Run By Americorps And ACORN And Gay People Who Want To Marry And Are Funded By George Soros.
It is suggested that Evil Activist Judges will trample the Constitution as they create Law out of whole cloth; and that only those who interpret the Constitution just as it was written can bring the proper attitude to the Court.
It sounds like somebody needs to come along and provide a couple of cogent thoughts about this whole empathy thing...and lucky for you, Gentle Reader, we have before us today specific examples of how the quality of empathy can express itself in Court Doctrine.
We gathered yesterday, Gentle Reader, for a discussion of the constitutionality of highway sobriety checkpoints.
In yesterday's episode we learned that the Fourth Amendment, according to the Supreme Court, can be ignored if the challenges of enforcing the law seem too burdensome for the Government...and we learned that despite a history stretching all the way back to the 1700s and the British case Entick v. Carrington, the Court was, for the first time, willing to allow general search warrants on American soil.
Today we take the history a bit further...and then we talk about what happens when freedom is given away...and sadly, we need look no further than a few miles from the Capitol Building, in Washington DC itself, to see exactly what happens when freedom is suddenly gone and a community is placed under siege by the police-all, we suppose, for the community's own good.
We have a lot of ground to cover, so we best get out on the proverbial road-and let's see if we can avoid our own roadblocks along the way.
The holidays are in full swing...or at least they are in the US...which means your days-and nights-are full of running around like crazy. There's a million things to do, a thousand errands to run, and...are you kidding me?!
A police sobriety roadblock?
Now?
That's right: there's a crowd of officers all around you, there's no way to avoid it...and even though you've committed no crime whatsoever, you get to talk to the police...and if they decide it's acceptable, you may continue on your way.
How can this be legal in America?
Does it actually serve any purpose?
And what happens when the police decide to blockade your neighborhood--for your own good?
Believe it or not, it's my job today and tomorrow to answer those questions...and beyond that, to defend the simple right of Americans to go somewhere if we feel like it, without having to explain it to the police...and in today's discussion, I intend to set the stage through an examination of history.
Those who are coming to this story today have jumped into the middle of quite a tale. I put myself in a tough position last time by promising to link a British "garden of lust", Benjamin Franklin, and 18th Century bloggers into a narrative that concludes with the nascent United States of America and its shiny new Fourth Amendment.
So far, amazingly enough, I'm pulling it off.
If you need to catch up, here's what's been going on:
When last we met...it was in a world of scandal and intrigue; with King George III and the Earl of Bute (and of course, their assorted minions) very upset with John Entick, author, and John Wilkes, author and world-class raconteur (and drinking buddy to Franklin), because they had the temerity to...well, blog.
The Earl of Bute had taken so much abuse from the Johns that he had been forced to resign from his position as Prime Minister...leaving the minions under his control, many said, only now from behind the scenes.
Something needed to be done...and when you have minions, you put them to use.
This may be one of the strangest tales I have ever brought to the table, Gentle Reader, and yet one of the most fundamental in describing the birth of our Bill of Rights...and most especially the Fourth Amendment.
As many of you know, the new FISA compromise may or may not allow warrantless wiretapping of American citizens on a wholesale scale.
Something you may not know is that a similar debate raged in England (centered around the right of Government to seize the papers of whomever they chose, and use the papers as evidence against those persons) during the reign of King George III-or that it involved scandalous sexual behavior, Benjamin Franklin, the 18th Century version of blogging, and two men who decided to take on the corruption of the Crown...and won.
And because of all that, we have a Fourth Amendment today.
Ready for a tale of liberty and ribaldry?
Then let's plunge right in, shall we?
There is a lot of debate in the public space this week over the impact of the United States Supreme Court's ruling that gives detainees in a "holding pattern" at Guantanamo Bay access to the United States Courts for the purpose of presenting petitions of habeas corpus.
It is a generally accepted misunderstanding that the Court's ruling gave new rights to the detainees, which seems to be the issue that is the most controversial.
The purpose of today's discussion is to explain why that view of the ruling is dead wrong...and to offer some thoughts on why this ruling might actually be one of the most important "restraint of government" rulings to have come down the pike in some time.
At a time when our constitution is in such crisis, the symptoms of which can be seen in every aspect of our politics and our government, there is one quote that sticks out to me above all others:
"I don't know if we have had a president that knows as much about the founding document as he does." - Professor Cass Sunstein, University of Chicago
