A MISSOURI LAWYER'S
FEBRUARY 25, 2005
Archived Prior Ramblings
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Greets and Huggers. Posted the evening of February
25, 2005. *** NOTE: The blue underlined text is
a link *** "We hold these truths to be
self-evident, that all men are created equal, that they are endowed
by their Creator with certain unalienable Rights, that among these are
Life, Liberty and the pursuit of Happiness.--That to secure these
rights, Governments are instituted among Men, deriving their just powers
from the consent of the governed ... " Declaration
of Independence, July 4, 1776.
Last week, my parents sent me a book: "Men In Black, How The Supreme Court Is Destroying America", by Mark R Levin, (Introduction by Rush Limbaugh). An interesting read. My Dear and much respected Friend, Paul Ivy and many others, would consider it "Gospel". In a post to the SFIG, this week, my Dear Friend Paul wrote, [paraphrased]: "Perhaps the attacks against activist judges is fueled ... by ... activist judges adding new rights, changing the contract we have with our elected representatives and amending rather than interpreting the Constitution ... " [I apologize in advance if this is not the gist of his post.] The book is based on a premise I find wanting: the rights you and I have, are the rights granted us by our Constitution. I respectfully dissent: I believe you and I retain ALL RIGHTS, except the ones we grant our elected representatives the right to regulate, for the "common welfare", (and the burden should be on the State to show there is a legitimate or compelling State interest in doing so).
Let us assume, (for arguments sake), God gave us "freedom of choice" .... as human beings, created in His Image. Doesn't that mean God has given you and I unlimited natural "rights", to engage in whatever behaviors we wish? At the same time, as social creatures, we consent to the limiting of those "rights", either self limiting for religious conviction/reasons or by mandate of government, for the common good, (a balancing of individual "rights" and societal need). And, on the governmental side, here, in my America, the limiting of these "rights" is governed by the contract we have with our elected representatives: our Constitution, (what "rights" our elected representative may or may not limit, in our common name). Isn't all legislation an attempt to define or limit our God given "rights", "free will" ... compel or regulate given behaviors ... endeavors .... or corporate/individual activities? So share with me how ANY governmental entity, be it the Executive, Legislative or Judicial Branches could engage in "adding new rights" ... when as individuals, as citizens of our America, we retain ALL "rights", even those not expressly protected in our Constitution, (see: Griswold v Connecticut, aren't "penumbra" rights, the very rights we have retained?) .... except the ones we consent, by virtue of our Constitution, through our elected representatives ... to give up? Share with me, for example, where, in our Constitution, our Constitution expressly protects your right, to raise your children, as you see fit, free of governmental constraints? ... (see Troxel v. Granville, 530 U.S. 57 (2000)). Yet, wouldn't reasonable persons consider that a "fundamental right"? Have you ever seen, ANY legislation attempting to increase our civil liberties, be struck down, because our judges believed it to be unconstitutional? In fact, isn't the converse true? Statutes struck down because they limit or abrogate our natural "rights" in violation of our Constitution?
I suppose I would have to agree to disagree with my Dear Friend Paul Ivy, until such time as he or anyone, (for that matter), can share with me ANY legislation enacted by ANY judge, any time, anywhere, in my America. There isn't any ... because judges don't legislate: they review the legislation, (legislation seeking to limit or regulate our "rights"), enacted by our elected representatives, in the light shed by our Constitution .... <scratching his head> .... so share with me .... how is it possible for any judge to be an "activist"? Share with me how limiting our elected representatives ability to limit OUR rights, is amending or changing our Constitution .... when the purpose of our Constitution, is to limit the ability of our elected representatives to limit OUR rights? If, indeed, there is such a thing as an "activist" judge, how could anyone find fault with him/her ... if the result of "inaction", is the loss of .... "rights"?
Keep in mind, there ARE shameful examples of our judges failing to act, bowing to the will of the popular majority and disregarding the mandates of our Constitution: Dred Scott v. Sandford, 19 How. 393 (1857), upholding slavery, "The Court ruled that Scott, as a slave, could not exercise the prerogative of a free citizen to sue in federal court.", Plessy v. Ferguson, 163 U.S. 537 (1896), upholding segregation, "The object of the amendment [14th Amendment ... take a moment and read it!!] was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either." and Korematsu v. United States, 321 U.S. 760 (1944), upholding the forced relocation of Japanese Americans, "In wartime, the old saying goes, law is silent, and the Supreme Court, which had only recently begun to play a stronger role in protecting minority rights, was loath to interfere with what the administration considered a necessary war measure." Thankfully, our current judges are not silent, this time, during THIS war. They have the moral courage, (and adhering to their personal convictions, they are human after all, whether they be liberal or conservative), to enforce the contract we have with our elected representatives: they ARE reviewing, what some may consider, the onerous provisions of the "Patriot Act", as each is challenged .... and rule accordingly. Would we ask less of them? Could they give more? No. 'Nuff said.
And in keeping with our good, elected, Republican, Missouri pig farmer/insurance agent legislators, dismantling a centuries worth of tested civil law .... in the "cretins-are-us" category, (never mind their "Creation Science" agenda): SJR16, "This proposed constitutional amendment, if approved by the voters, would reduce the term of office for a supreme court judge from twelve years to five years. Further, in order for a supreme court judge to be retained, the judge must receive two-thirds of the public vote, rather than a simple majority of the vote." HJR10: "Proposes a constitutional amendment requiring the advice and consent of the Senate for Missouri Supreme Court nominees." and HJR11: "Proposes a constitutional amendment requiring Senate confirmation of Missouri Supreme Court and Court of Appeals nominees." So, our Republican elected representatives would like a Missouri Supreme Court, comprised of Senate nominated, Senate approved Judges, serving a 5 year term? Really would enhance a system of government based on "checks and balances", wouldn't it? If ever there was a need for a "respected opposition", it is now. As my father is want to say and as our elected representatives seem to be showing: "Power corrupts ... and absolute power ... is even better."
In interesting science news published this week in National Geographic, seems all males are dogs: "Scientists have found that, even in the animal kingdom, males hand out so-called nuptial gifts that seem to be worthless. Nuptial gift giving is a well-known phenomenon. Gifts frequently consist of food like nutritious prey items or dried insect fragments." The female typically eats her gift while copulation takes place." But if males are dogs ... what are females? Apparently, females of more than 80 species eat their mates before, during, or after mating. The Praying Mantis for example: ".... the female has to eat the head of the male mantid to release the full complement of mating behaviors .... In other words, they can't do it unless he loses his head. When the male loses his head literally it blocks normal inhibitory nerve impulses, and he becomes more enthusiastic sexually, at least from a physical point of view. Bizarre as it seems, the male mantid can continue to engage in sex after his head has been devoured. Don't you have to wonder how these researchers operationally defined "more enthusiastic sexually"? Just how do you objectively measure the sexual enthusiasm of a male "Praying Mantis"? It's not like he can scream, "Oh God! Oh God! Oh God" .... (or ... is that WHY he's called a "Praying Mantis"?)
Watched "A Company of Soldiers" on PBS, on Tuesday night. 1st Battalion, 8th Cavalry, "Dog" Company, "the Misfits". I'm sure for some on the SFIG, it would bring back memories of the incredible sense of "Brotherhood" felt by those who share common dangers and common goals, under fire, in harms way. Ordinary persons, doing extraordinary things. Unlike the morons at PBS, (and some of their subscriber stations), who broadcast two versions: one "sanitized" by having "expletives" "bleeped" out and the other, showing men, under fire, yelling and screaming ... some in pain, some in fear ... but all showing the horror of war. "If an affiliate used the unedited version, it also had to sign an oath taking full responsibility and accepting any federal fines for airing it, which completely absolves national PBS of any blame ..." These "guardians of our morals" at PBS, are the same cretins who banned an episode of "Postcards from Buster" because the episode showed a lesbian couple raising a child. <whispering> ... wanna bet these folks at PBS would swear their parents NEVER engaged in any sexual activities?? Course, I shouldn't poke fun, after all, I know my parents only did "IT" 4 times, (I have 3 brothers and sisters.)
Sitting here, editing these Ramblings, sipping on some Fairbanks Port, (over crushed ice), trying to figure out how we got to a point where honorable, intelligent persons could believe our judges should adhere to the current "will of the people" ... instead of enforcing our Constitution. Didn't the "will of the people" prolong slavery, segregation and support putting Japanese Americans in concentration camps? When did the "will of the people" become anything but the will of the majority? When did the "will of the people" start taking an interest in preserving and protecting the diverse richness of a vibrant, opposition, viewpoint? Isn't our America great because we have historically refused to allow the majority, ("the will of the people"), dictate what "life, liberty and the pursuit of happiness" means for ALL people? Haven't the rare occasions that our judges did listen to the "will of the people" prove disastrous for us all?
Susan and a couple of her Lady Friends from St Peters are attending the "Stations of the Cross", tonight. She gave up cigarets for Lent, (been two weeks) and honors "Meatless Fridays", (even though she can not participate in Communion and Confession). Isn't that the nature of faith? My faith remains personal, between me and my God ... all he requires of me is selfless love: for him and for my fellow beings, (keep in mind, my God loves all his children, especially those that are having difficulty in the "judgment" department :) Tonight, as I drift off holding and curled around a far better person than I, (and yet, who still loves me, with all my many shortcomings), I will thank God for his "tender mercies", our men and women in uniform, (care to join me?) ... <whispering> .... Please, Please, Please, God ... let them come home safe and soon!! and for you. Be and sleep well, knowing the best there is, is on watch so you can. If my post offends, I apologize ... that is not my intent. As Always ....
A Warm Brotherly Hug
Karl (the dumb ole country lawyer from Holden, Missouri)
Karl H. Timmerman M.A.J.D. © 2005
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