Legal Marriage Put Simply

By Julian Dunraven, J.D., M.P.A.

Yesterday, the U.S. Supreme Court heard oral arguments in Obergefell v. Hodges (the gay marriage case).  This has, predictably, provoked almost everyone to begin shouting opinions as to the meaning of marriage at one another and, unsurprisingly, each opinion is different.  The Supreme Court will not be deciding this case based on any particular view of marriage, however, but upon the underlying legal issues involved. Let me see if I can dispel some of the confusion about this case, by clarifying those issues.  

First, marriage is three things: it is a sacrament bestowed in various religious traditions; it is a contractual agreement between the married parties; and it is a bundle of rights granted by the state.  The sacramental aspect of marriage is defined entirely by each religion, and is not in dispute.  Under the 1^st Amendment to the U.S. Constitution, the government has no role in this, and never will.  Jewish rabbis cannot be forced to perform Muslim weddings, and Catholic priests cannot be forced to perform gay weddings.  Period.  That is fundamental religious freedom.

The second aspect of marriage, the contract, is more complex, but is also undisputed.  Talk to any ten married couples, and you will get ten different ideas about what marriage is, means, and requires—and they will all be correct.  For better or worse, each couple decides for themselves what their marriage will require of each party.  Sometimes, that arrangement is explicitly stated in a pre or post nuptial agreement; sometimes it is developed organically over time through consensus.  In any case, this is not going to change either, and is not in dispute.

Those two aspects of marriage fully encompass the entire marriage concept to most people.  Yet, it is the third aspect of marriage, the bundle of rights granted by the state, that causes all the legal fuss.  There are several thousand rights involved in the marriage bundle, ranging from medical care and treatment to death and social security benefits.  While the assortment of rights in the bundle are numerous and complex, the issues involving the marriage bundle itself are not terribly difficult to grasp.

The first big legal question is why the Supreme Court should decide this issue, and not a more democratic process.  That is simple: we are not a democracy; we are a constitutional republic.  Under a democracy, the majority will always rules.  Thus, it is nothing more than legitimated mob rule.  Its shortcomings are revealed most starkly in the democracy of ancient Athens, which executed Socrates, perhaps the greatest thinker in history, merely for making the majority uncomfortable.  In the U.S., we framed the Constitution precisely to prevent such tyranny of the majority, and to guarantee our rights and liberties, many of which are specified within it.  A right is absolute, and is not subject to majority rule.  Under our constitutional system, it is the judicial branch, with the Supreme Court at its head, that is most accessible to individuals, and thus serves as the primary guardian of our rights. 

In this case, the rights the Supreme Court must consider stem primarily from the 14^th Amendment to the U.S. Constitution.  This is the amendment that guarantees that neither the states nor federal government can deprive any person of life, liberty, or property without due process of law.  It also guarantees that every person will enjoy equal protection of the laws.  At the very least, if any government passes a law or regulation that impacts these rights or liberties, it must have a rational basis for doing so.  That means that the law must make logical sense, and achieve a legitimate purpose.  

So is marriage a right?  Absolutely.  In fact, the Supreme Court has ruled repeatedly that it is a fundamental right, included in the concept of “liberty,” the amendment mentions.  The constitution does not mention it more specifically because the Bill of Rights was never intended to be exhaustive (many founders thought it was unnecessary to include at all), and the founders would have found the idea of specifying a right to marry to be absurd, as it is so fundamental to being human. 

That is the easy part.  While the concept of marriage is irrevocably enshrined in judicial precedent, its legal expression has changed considerably over time.  Long ago, marriage granted a property interest to the husband over his wife and children as an economic unit.  The wife’s legal identity was entirely subsumed beneath her husband, and it was not always consensual.  Of course, this allowed for marital rape.  Interracial marriages were not permitted, nor were marriages of the handicapped.  Both were considered criminal offenses. At times, interfaith marriages were also prohibited.  Those unfortunate enough to be sterile might find their marriages annulled.  All of this has changed.

Today, a legal marriage consists of a consensual and legally equal union between two people of any ethnicity or faith, whom may or may not be sterile, may or may not have children—or even intend to, may or may not cohabitate, may or may not share resources, may or may not be sexually intimate, and may or may not even like one another but, for whatever reason, choose to be married anyway.  

Enter the Equal Protection Clause.  Given the rather vague legal standard for modern marriages, the Supreme Court must decide whether there is even any rational basis for restricting the modern institution of marriage to a man and a woman, thus excluding all same sex partners who wish to participate equally in the institution.  This was the main challenge the Justices put to the opponents of gay marriage. 

In answer, opponents of gay marriage generally cite two reasons for preserving the definition of marriage as limited to a man and a woman.  The first is that it adheres to long tradition, and the second is that it helps foster what the state sees as an idea setting for childrearing.  Both of these justifications were offered to the Court.

Tradition is the weakest of the two arguments.  To argue that marriage has existed for countless millennia unchanged, and has always been between a man and a woman across every culture and civilization is highly misleading.  Two-spirited people in some Native American nations wed either sex.  Many other cultures throughout time had established same sex relationships that carried legal privileges and duties that today would look very similar to modern marriages. The same sex relations of ancient Greece and Rome are especially relevant.  En balance, many marriages between men and women in past ages were conducted according to rules and legal standards we would not recognize as marriage today, and might well find abhorrent.  Several such instances are listed above.  Finally, tradition carries no weight just because it is old.  It also has to be good.  Slavery is perhaps one of the oldest and most culturally universal traditions on earth.  However, it is evil, and was thus abolished in this country.  Thus, the argument for tradition, by itself, cannot stand, and indeed the Justices expressed extreme skepticism for it.  

In answer, the states attempting to preserve their traditional definitions of marriage offered the justification that marriage between a man and a woman serves to honor and encourage an ideal procreative bond between parents and their biological children.  Here too, though, they encountered great skepticism.  States allow marriages to dissolve in divorce proceedings, even when children are involved.  Many women, whether single or in lesbian relationships, undergo artificial insemination with state sanction.  States further permit single parent adoptions, as well as gay adoptions.  States also permit marriages for sterile couples, couples past the age of childbearing, and couples where one party may be in prison, and is incapable of either consummating the marriage, or even of adopting children.  It is exceptionally difficult to see where the interests of the marital children in a stable family unit diverge from the interests of the non-marital children households with similarly stable--but gay-- families, or even in single parent homes.  It is equally difficult to see how those married couples incapable of bearing children or adopting them advance that supposed interest.  Mostly, it seems an irrational distinction.  

Once one eliminates tradition and child rearing as sufficient justifications for excluding same sex couples from the legal institution of marriage, only two explanations remain, both of which are legally invalid.  The first is animus, or disapproval of same sex relationships and the belief that they should not receive the same honor or sanction as heterosexual relationships.  While everyone is free to take moral positions on any issue, creating separate legal statuses for a disapproved class of people violates the equal protection clause, and is thus unconstitutional.  

The second remaining objection grows out of conceptions of marriage rooted in its sacramental aspect for many religions, or  its contractual aspects in many personal preferences, where the idea of a same sex union may have no place.  These are important aspects of marriage, certainly, but they are not legally significant, nor would they be impacted by any legal ruling.  They remain firmly within the domain of personal religious belief, protected by the 1^st Amendment, but also prevented by that amendment from becoming universal legal standards.  

These deficiencies in the arguments of those states attempting to preserve the definition of marriage as exclusively between a man and woman are why every federal court save one has ruled in favor of gay marriage.  It is extraordinarily difficult to find a rational basis for the exclusion, given our society’s nebulous definition of marriage and rather open standards for adoption and child rearing.  Many have suggested that the government get out of the marriage business entirely and leave the concept to churches and individuals.  That would probably be the most principled solution.  However, so many legal rights and structures are tied up in the bundle we call legal marriage, that our societal structures would not tolerate a complete state withdrawal from the concept—nor is that an option the Court could take in this case.  As a result, it looks quite likely that the Court will rule in favor of extending the fundamental right of marriage to same sex couples, not because they want to change the definition or meaning of marriage, but because they cannot find a logical reason to prevent the changes we have already made from applying to same sex couples too.     

The 4th Amendment: A Right—Not a Privilege

By Julian Dunraven, J.D., M.P.A.

What is the difference between a right and a privilege? Answering that is a difficult task, for our legal system so often conflates the two concepts. Yet, in the simplest sense, a right is basic liberty intrinsic to being human, while a privilege is granted or purchased from someone else. Legal privileges, or government granted rights, are created, granted, and maintained by government. In this area, you will find your right to drive on public roads with a driver’s license, your rights to attend public schools, and your right to one vote at the age of 18 for government elections—often provided you are not a felon. These are lesser rights, more properly called privileges. Your greater human rights, however, are innate to you just by being. Governments do not create them, and cannot take them away. Governments can only recognize and respect them, or oppress them; in either case these fundamental rights remain absolute regardless of the government. In the United States, some of these greater human rights are expressly enshrined within the Constitution—especially the Bill of Rights and the 14th Amendment.

Within the Bill of Rights, the 4th Amendment is perhaps most foundational to this country’s origin. It expresses a principle we borrowed from our British forbearers, who already held it in great reverence. I think it was best stated by William Pitt, the British Prime Minister, in a now oft quoted speech, just a few years prior to the American Revolution:

"The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter, the rain may enter,—but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement!"

Unwisely, the British forgot that brave and noble principle in their management of the colonies, and forced upon them the hated Writs of Assistance and General Warrants. When the colonists finally began to stand up to these dreaded instruments of oppression, as John Adams said, "there the child independence was born." And to ensure such atrocities never again occurred, the founders gave us the 4th Amendment:

“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.”

This sounds very nice. Most people read this and believe themselves secure from government searches, seizures, and arrests unless there is probable cause and a warrant from a court. Unfortunately, most people would be wrong. All the forces of the Republic have proven much more pernicious than all the forces of the Crown, and warrants today are the rare exceptions to law enforcement activity.

Today, law enforcement can look through your phone records, your internet activity, your bank records, your trash, and many of your business operations, all without warrants. Schools or workplaces can offer no protection, and even your own body is open to inspection without warrant. Criminals—whether convicted or merely accused—get no privacy at all, and if you happen to be at an airport or a border crossing, neither do you. Indeed, the searches now conducted by the U.S. national security apparatus are indistinguishable from the General Warrants that led to the Revolution. So what happened to the 4th Amendment?

The problem stems from one little word: unreasonable. Over the years, the Supreme Court has held that the first and second clauses of the amendment are nearly separate. In short, a warrant, requiring probable cause and particularity is only necessary if a search is unreasonable. A reasonable search, according to the Court, does not require a warrant. So what is reasonable or unreasonable? To determine this, the court engages in a balancing test. On one scale it places your expectations of privacy which society is prepared to accept. On the other it places the interests and importance of the state getting the information it wants. This defines your right to privacy under the 4th Amendment—and it is no right at all.

The rights protected by the 4th Amendment are fundamental and innate rights. Yet the Court seeks to balance them against Government interests before it will recognize them. If a right is only recognized if the Government deigns to do so, but is reduced or eliminated whenever the government determines a matter sufficiently important, then it is no right at all. Such sufferance at will reduces a right to a mere privilege. And the government will, ultimately, always find its own interests outweigh individual liberty or privacy. The proof is all around us.

Try imagining a TSA agent telling George Washington to spread his limbs while their scanner took a photo of his nude body for security purposes, or their staff conducted a pat down which, anywhere else, would be called sexual molestation. Or perhaps imagine the reactions of Adams, Franklin, or Jefferson in discovering that anything they submit to another person or business, from email via an ISP, or a monetary deposit via a bank—effectively every record and transaction—is subject to warrantless and constant surveillance. Somehow I doubt they would have much sympathy for the idea that it is all an important state interest for the security of the nation.

The problem is now bad enough that at least one Justice of the Supreme Court, Sonya Sotomayor, has suggested abolishing the doctrine that information turned over to a third party (such as an ISP, bank, or phone service) is fair game. Unfortunately, she bases her argument on the idea that the modern electronic age simply allows for too much information to be snapped up by government watchers. This means only that she dislikes the consequential result of the doctrine laid down by the Court. It is not a principled objection; our rights remain subject to her subjective sense of what is or is not too much government intrusion, and mass traffic stops, random personal frisks, and other arbitrary exercises are at the whim of the justices. There is an alternative, however.

If the 4th Amendment were read as a whole, as it should be, rather than as separate parts, then it becomes clear that all searches and seizures must be supported by individualized probable cause. That being the case, the only reasonable searches or seizures which could take place without a warrant would be those crimes directly observed by law enforcement, or those emergency situations to which someone involved consensually invites law enforcement. Those are about the only instances where probable cause can be established directly by a law enforcement officer, and would thus be reasonable. Anything requiring indirect observation, or the compilation of disparate evidence, would of course require the judicial oversight of a warrant.

I have no doubt that governments at every level would scream that this view of the 4th Amendment would make it much more difficult for them to pursue criminals. They would be right. However, the primary function of government is not to pursue crime, or even establish order. Rather, it is to guarantee liberty: liberty of each individual against other individuals, certainly—but also liberty of the citizens against the government. Only through this holistic view does the 4th Amendment take on the power of an absolute principle—a human right—not a government privilege. Anything less leaves it to the subjective, arbitrary, and evolving preferences of the Justices, always with the heavy thumb of the government weighting the scales. Alas, I doubt this will come to pass anytime soon.

Every time I teach 4th Amendment jurisprudence in my Constitutional Law class, I find it fascinating to watch the students. Inevitably, by the end they will be in frothing rages against the almost total abolition of privacy that has befallen this nation, and demand to know why my class is the first time they are hearing about it. The tragic answer is that only Constitutional Law classes—and few enough of those—are even paying attention.

Unfortunately, few of our citizens guard their constitutional rights as they should. Thus, few even know how impotent the protections of the 4th Amendment have become. Elected leaders actually campaign on proposals that undermine 4th Amendment rights in the name of safety, of efficiency, of getting at bad guys and, above all—of national security. So far, the people have bought it all, happily selling their rights in exchange. And so Natural Rights become mistaken for government granted privileges. Until people remember what a right actually is, acknowledge how much they have lost, and demand it back from their government, nothing will change. Until then, we remain under near total surveillance. Liberty requires constant vigilance, and our people have been asleep.

The Cyberbullying of Gay Youth

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

By now, most of you have heard the sad story of Tyler Clementi. He was that unfortunate freshman at Rutgers University whose sexual encounter with another man was secretly filmed by his dorm roommate and live streamed over the internet. Mr. Clementi then committed suicide by jumping of the George Washington Bridge, having first posted his plans to his Facebook page. The incident captured the attention of the national press, which has since worked diligently to highlight much of the bullying gay youth endure daily.

The Denver Post is no exception. In yesterday’s front page story, “Young, Gay, Bullied,” the Post focused on the high rates of depression and suicide among young gay students who are bullied by or isolated from their peers. Of particular interest is the relatively recent phenomenon of cyberbullying through blogs, YouTube, Twitter, Facebook, and other online sources. The Post cited several methods of addressing this problem, ranging from additional tolerance education and awareness programs to school administrative punishments to new legislation criminalizing cyberbullying. Such legalistic outcomes, however, would render an already tragic situation truly ghastly.

Do not mistake me. I truly do understand the problem and I do not doubt the plight of these young gay people. During my own time in high school, I was careful not to reveal my bisexuality to more than a handful of trusted friends. I was well liked, and had no desire to sacrifice social status to an identity which would have rendered me an instant pariah. Still, there were always rumors, inevitable suspicions, and occasional confrontations. Some of that was decidedly unpleasant. I was lucky, though. Those friends who did know accepted it without question. Many others would not have cared even if I had told them. And to my family it was a non issue. Not everyone is so fortunate.

Unlike other minority groups, gay students have no natural support network; their parents and siblings are generally straight. Often, families not only have difficulty relating to the problems faced by gay youth, they also actively disapprove of homosexuality. Peers, faced with overwhelming pressure to fit in, will often disassociate from gay students for fear of being labeled with the f- word themselves. Gay people faced with any one of these situations can and do feel incredible isolation and depression. That much is undisputed. Debates among scholars and theologians regarding the causes, nature, and morality of human sexuality, however, can fill volumes. It is not something to be addressed here at the Peoples Press Collective, which limits its scope to issues dealing with individual liberty, the free market, and limited government. Unfortunately, whatever one may think of their intent, many of the proposals listed by the Post to address the cyberbullying faced by young gay people negatively impact all three of those topics.

Focus on the Family correctly points out the danger to the marketplace of ideas and free religious expression with mandatory school programs and penalties specifically tailored to promote tolerance for homosexuality. Many mainstream religious traditions regard homosexual acts as mortal sins. For any public school administration or law to step in to enforce toleration and acceptance of homosexuality would usurp the province of religion to define virtue and thus violate one of the most cherished aspects of the first amendment. According to the Post, Focus on the Family instead would like to see bullying policies that protect all students against all forms of bullying for any reason. Even this, however, goes too far.

Apparently, our society has gotten to the point where at least some believe it is no longer acceptable to make gay people feel excluded or unwanted. Well and good. After all, gay marriage and civil unions are increasingly recognized in the various states and nations of the world. What about stoners though? I recall those semi-dazed individuals who would languish behind the main building of my high school, quietly smoking their marijuana while the rest of us went to class. Many students shunned them and sneered at the foul reek that hung about them. Yet, smoking marijuana for medicinal reasons is now legal in Colorado. California may soon legalize it for any reason. Should we now prohibit any exclusion or derision of such drug use? And what of students who espouse a belief in the doctrines of Stalinist Russia, Nazi Germany, or the KKK? Such beliefs are certainly legal. However, at my high school, anyone who publicly stated such beliefs quickly found themselves without a single friend and excluded from all social functions by their peers. Should such exclusion and public derision be prohibited? I think not.

The first amendment also protects the freedom of expressive association. We can choose with whom to associate. We are also free to state the beliefs and values that hold such associations together and exclude and disapprove of those who refuse to meet those values. Sports and athletics are perhaps the most obvious examples of this. While participation is voluntary, you must accept the rules in order to be included. Failure to play by those rules results in censure and exclusion. Though other human associations may not be so clear about their rules, the basic idea is the same. Politicians soon find themselves excluded from their own parties if they take positions in conflict with the party platform. Dinner guests, likewise, do not often receive a second invitation if they forgo the use of any utensils or decorum. Indeed, such behavior, if it becomes publicly known, can even cause a person to lose his employment.

While most of us appreciate our freedom of association, few people acknowledge the importance of disassociation and publicly expressed disapproval. While exclusion does make people feel terrible, it is the best tool we have to regulate social norms and values in a free society. In this way, everyone is free to choose their own social circles, promote the values which are important to them, and exclude those who do not share such values. The only alternative is to have a governmental authority dictate all values and associations. That is completely unacceptable—but it seems many people are calling for exactly that in an effort to address cyberbullying.

Obviously, any responsible school should have reasonable policies prohibiting bullying on its grounds. Name calling and similar behavior is not only rude, it is disruptive to the educational process and should be sharply corrected. In the event of a physical altercation, the law, in addition to any school policy, can bring severe penalties to the aggressor, though all people have a right to defend themselves and others. However, when school policy or legislation extends beyond the school grounds and classrooms into the social lives and online interactions of students, problems arise.

Unless an overt physical threat is expressed, cyberbullying, while often cruel and rude, is often no more than disdainful speech. Any attempt to limit it can run afoul of the first amendment. It has other unpleasant consequences as well.

By interfering in the social lives and expressions of youth, such policies take away any opportunity students may have to express and enforce their own values, and places that responsibility solely on a governmental authority. The proper response to a bully who is rudely or inappropriately deriding a friend in speech or in any online forum is to exclude the bully from social life. Conversely, if someone expresses legitimate condemnation of unacceptable behavior, the object of such condemnation should be excluded. In this way, students learn to stand up for their own values and regulate their own behaviors. It does wonders for their sense of self worth as well. When the state or school authority criminalizes such behavior and usurps all power to regulate associations and interactions, it teaches our youth to rely not upon themselves and their friends to solve problems, but on official authority. In later life, that produces well trained sheep without any self esteem who follow their employers without question and who expect governmental authority, not individual innovation, to solve all of their problems for them. That is not how a free people should live. That is how slaves and serfs live.

Every time law intrudes into the province of etiquette, these problems arise. As a lawyer, I know it for absolute truth that law is seldom the best solution to any given problem. It is vital to remember that the authority of law ultimately issues from the barrel of a gun. Law is force. It takes away any choice or option and imposes a permanent directive which must be followed lest one lose property, liberty, or even life. Etiquette, on the other hand, is wholly consensual, dynamic, and continually adaptable. Merely by exercising our right to associate and disassociate as we see fit, we express and enforce the values which we want to guide our individual lives.

At times, we will all face situations in which we are rudely or perhaps even unjustly excluded and demeaned by those who do not share our values. Certainly, young gay students face this more often than most, and I have the greatest sympathy for them and what they endure. The solution, however, is not to call for the school authorities or state legislature to enforce tolerance and acceptance of homosexuality, or whatever the case may be, upon everyone else.

Any victim of such ridicule should instead seek out a group of peers who share his values and stand ready to defend them and one another. Other students should express their own support of such individuals while publicly censuring and excluding anyone they believe is behaving rudely or inappropriately toward another individual. As families, friends, and community members, we should be encouraging our youth to express and defend our values. When we see others attacked for values we share, we should live by example and speak out in their defense, censuring and excluding bullies from our own social circles and networks. In this way, free people constantly foster and defend the values they live by—not by law, force, and compliance—but by individual choice, responsibility, and virtue. Moreover, unlike law, which imposes one standard on everyone, etiquette leaves each person free to find their own group of like minded individuals.

Having experienced the hardships bullies can impose first hand, I understand the deep desire people have to protect their children from enduring similar circumstances. As a current practitioner of corporate law with its stringent demands for professionalism, I abhor rudeness of any sort. Here at the PPC, we even created the “Political Breath” page to address issues of etiquette in political activism. However, much as I despise bullying and rudeness, I am unwilling to sacrifice my freedoms for the illusion of acceptance. Government cannot legislate social inclusion. It cannot grant self esteem. It cannot force virtue into human hearts. Only individuals have that power, and as individuals we must take the responsibility to do so.

U.S. Supreme Court Overturns Corporate Political Spending Ban

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

Do you believe the government should determine what the media can broadcast? Do you believe the government should decide which businesses constitute “media” and which do not? This is exactly what the Supreme Court ruled on yesterday in Citizens United v. Federal Election Commission. As Justice Kennedy wrote for the conservative majority:

“The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations-- including nonprofit advocacy corporations-- either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.” 558 U.S. ___ (2010) at 20.

This law, according to the majority opinion, gives rise to “the dangerous, and unacceptable, consequence that Congress could ban political speech of media corporations,” on a whim. Even the People’s Press Collective, as private corporation not classified as traditional media, could have incurred criminal liability for advocating for or against any candidate within the statute’s time frame. Does this frighten you? It should.

The reason for this oppressive law is that it supposedly protects shareholders from being forced to fund political causes with which they disagree. It also prevents the appearance of corruption and quid pro quo arrangements between politicians and corporate interests. Finally, and most importantly, it allegedly prevents the distortion of the election process by the large accumulations of wealth held by corporations.

The Court swiftly dismissed the first two concerns. Corporate shareholders have the option of divesting if they do not like the actions of any particular company. However, even if this were not the case, limiting political speech only in the days immediately prior to an election but at no other time hardly shows a serious concern for shareholder interests. As to quid pro quo arrangements, we already have anti-bribery laws in force. Attempting to go further and prevent mere access or influence is not only impossible, it is an impediment to representative democracy itself. As it is, the law would continue to permit lobbying by those companies wealthy enough to engage in it, but prohibit other companies from engaging in fundamental political advocacy; hardly an equitable arrangement.

In his dissent, Justice Stevens argued passionately, if not plausibly, that the government has a strong interest in preventing the appearance of corruption corporate wealth can create. He further maintained that, as the First Amendment never mentions corporate entities, they should not be entitled to full speech and press protections. In fact, he maintains that corporate speech is adequately protected in the lengthy procedures set up to create 527 groups, PACs, and the cumbersome and expensive filing, reporting, and maintenance requirements such affiliations entail.

The Court maintains, however, that:

“The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day. Prolix laws chill speech for the same reason that vague laws chill speech: People ‘of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.’ The Government may not render a ban on political speech constitutional by carving out a limited exemption through an amorphous regulatory interpretation.” Id. at 7 (internal citation omitted).

The Court goes on to point out that corporations, as affiliations of individuals, have long enjoyed First Amendment protections. Moreover, the text of the First Amendment itself is not limited to individuals, but protects the freedoms of speech and the press in general. The Court, “rejected the premise that the Government has an interest in equalizing the relative ability of individuals and groups to influence the outcome of elections,” and stated that, “The First Amendment’s protections do not depend on the speaker’s financial ability to engage in public discussion.” Id. at 37 (internal citation omitted).

In short, the First Amendment exists to protect the political speech of citizens, as individuals, groups, or corporations. “By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.” Id. at 24.

“The censorship we now confront is vast in its reach. The Government has muffle[d] the voices that best represent the most significant segments of the economy. And the electorate [has been] deprived of information, knowledge and opinion vital to its function. By suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests. Factions will necessarily form in our Republic, but the remedy of destroying the liberty of some factions is worse than the disease. Factions should be checked by permitting them all to speak, and by entrusting the people to judge what is true and what is false.” Id. at 38 (internal citation omitted).

This is as it should be. Despite this, though, the Court still upheld requirements for disclosing donors and issuing disclaimers as to who funds political advertisements. Only Justice Thomas objected to this. He points out the possible chilling effects on speech when activists target political donors with violence and intimidation, saying, “I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in core political speech, the primary object of First Amendment protection.” Id at 6 (Thomas, J., concurring) (internal citation omitted). Thus, he maintains we have still one further step to take on the road to truly free political speech.

As it stands, the Supreme Court has overturned the ban on direct corporate political advocacy. Corporations are still subject to contribution limits in candidate campaigns, as are individuals, and they must still disclose their donors and take credit for any political advertisement they produce. Nonetheless, this decision should be celebrated by anyone who still believes in the First Amendment. Here in Colorado, I am certain some enterprising company will use this decision to overturn our own state ban on direct corporate advocacy, which so closely mirrors federal law. I look forward to that day.

Hate Crimes: Killing Both Liberty and Equality

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

Stunned. Appalled. Deeply saddened. Angry. I remember feeling all of these emotions as I watched the tragic story of Matthew Shepard’s brutal slaying unfold in the media back in 1998. It was with great satisfaction that I watched the conviction and incarceration of his murderers. I thought that would be the end of it. Unfortunately, I forgot that a terrible emotional tragedy often leads to a terrible legal tragedy.

Yesterday, a friend called to gush happily that President Obama just signed new hate crimes legislation into law, which includes sexual orientation in its protections. He was surprised that I did not share his enthusiasm and wondered how someone who supports gay rights could fail to be pleased by this outcome. In truth, I support equal rights for all individuals. I believe every individual has the right to determine the nature and type of their intimate relations, their associations, and how to use and dispose of their own property without government interference. Because of this, I have often supported gay rights efforts. However, what right does hate crimes legislation protect?

Hate crimes legislation does not protect any right whatsoever. On the contrary, it is a prohibition. But what exactly does it prohibit? Certainly, it does not prohibit any action. Indeed, we already have a comprehensive body of law prohibiting assault, battery, murder, rape, et cetera. Hate crimes legislation does not add to this list. Rather, it criminalizes the thoughts of the defendant committing these already established crimes.

My honorable friend argued that our legal system already imposes greater or lesser punishments based on a defendant’s mental state, so I should not be overly concerned with this addition to our legal process. This is not entirely accurate, though. Consider the following two cases:

In the first case, John and Eric are playing hockey. At the end of the game, John manages to steal the puck right out from under Eric’s nose and score the winning goal. In a fit of blind rage, Eric leaps upon John and beats him to death with his hockey stick.

In the second case, John and Eric have just attended a lively Political Science class at their college, where John expressed several views Eric detested. Determining that John should be taught a lesson, Eric hid in some bushes and ambushed John as he walked back to his apartment. He then proceeded to beat John to death.

Under our legal system, Eric committed murder in both of these cases. However, in the first case, he flew into a blind rage where passion, not reason, guided his actions. Consequently, we impose a lesser penalty than in the second case, where he clearly plotted the crime and intended to commit murder. Thus, our legal system judges the defendant’s mental state of intent. We do not normally criminalize his thoughts.

Now consider the same two cases, but assume that John is gay and Eric is homophobic. Has anything really changed? Is John any more dead, or Eric any guiltier of murder than in the first two cases? No. Under hate crimes laws, however, Eric is guilty of having thoughts and values the government finds objectionable, and so his punishment is increased. This is why hate crimes legislation is so dangerous. It presumes to regulate that which should be beyond the reach of any government: our thoughts and values. That is not where the danger ends, though. Perversely, hate crimes legislation also means that, as a gay man, John’s life is more valuable to society than the lives of other men who may be straight, and thus do not share John’s increased legal protections. This is not Justice. It is patently immoral.

A society of equals cannot exist when the laws unequally value lives. A free society cannot exist where a government has the right to criminalize thought. While I agree that homophobic people are ridiculously small minded and hateful, I cannot bring myself to criminalize their thoughts and values on that subject. I remember all too well the days when homosexuals and anyone sympathetic to them was viewed by governments and society as perverse, deviant, and indeed, criminal. This reasoning applies to any hate crimes legislation, whether it is intended to protect race, religion, ethnicity, sex, or sexual orientation. The right to determine ones own values and thoughts, however objectionable others may find them, is fundamentally necessary to maintain a free society and public discourse. Contrary to what my honorable friend mistakenly believed, anyone who supports gay rights, or indeed any individual rights, should not be celebrating the expansion of hate crimes legislation; they should be trying to repeal these legal abominations entirely.

No group of people can gain acceptance through force of law. They only succeed in destroying their own liberties and becoming the oppressors they once fought. They should instead endeavor to maintain equal rights for all, and rely on persuasion to alter the opinion of their fellow citizens.

If there is such a thing as a Devil, I doubt he ever appears in flames with cloven hooves and frightening horns. It seems to me he would be beautiful and seemingly benign. In our society, the greatest devil of all is the government. Hundreds of smiling men and women, in both Congress and the executive branch, frequently offer to solve all our problems with a seemingly benign law or regulation. All it costs is our liberty and equality, the soul of the United States.

　

　

　

Interior Permits Guns in the National Parks

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

In its waning days, the Bush administration has at last given us something to celebrate. And no, I am not simply referring to its imminent departure. Today, the Assistant Secretary of the Interior for Fish, Wildlife and Parks, Lyle Laverty, announced new regulations recognizing an individual’s right to bear arms in the national parks and wildlife refuges.

According to the announcement, the new rule, “would allow an individual to carry a concealed weapon in national parks and wildlife refuges if, and only if, the individual is authorized to carry a concealed weapon under state law in the state in which the national park or refuge is located.” Congratulations Coloradans; all you need to do to carry a concealed handgun in the national parks here is to obtain a concealed carry permit recognized in Colorado. Just don’t try it in states which refuse to recognize our permits—such as the entire Left Coast.

This is a rather major development. Previously, possession of a loaded firearm in a national park or wildlife refuge was strictly forbidden by law since 1983. The former regulations demanded that any firearm be kept unloaded, in a locked case, in some inaccessible part of your vehicle, such as the trunk, in order to enter a national park with it at all.

The new changes came about as Interior Secretary Dirk Kempthorne responded to letters from 51 Senators (Letter 1 / Letter 2) of both parties who pointed out that 48 states now have concealed carry laws and our federal regulations should be updated to reflect that change. Occasionally, even Senators do manage to say something sensible, and it seems Secretary Kempthone agreed.

Naturally, this change in the rules did not come without substantial opposition and, in the published rule, the Department of Interior took the opportunity to respond to many of the concerns raised during the lengthy 90 day comment period. For instance, environmentalists will be pleased to know that most studies conclude that the vast majority of concealed weapons permit holders are not, in fact, poachers. Rather, they tend to carry their weapons for purposes of self defense, and are well aware that any improper use of a firearm is still a punishable offense. The Interior goes on to admit that violent crime is on the rise in national parks, especially near the border and in remote areas, with 8 murders, 43 rapes, 57 robberies, and 274 instances of aggravated assault in 2007. The Department also warns that the mere 3000 officers it has patrolling the millions of remote acres in our national parks cannot possibly guarantee safety. Thus, having a weapon of self defense may not be such a bad idea.

The year 2008 has been good for gun rights and the Second Amendment. First, Justice Scalia gave us the highly entertaining opinion in the District of Columbia v. Heller, in which the Supreme Court affirmed an individual right to keep and bear arms, overturning the D.C. handgun ban. Now we have the Interior opening the national parks to concealed carry permit holders. If you are still looking for stocking stuffers, I cannot think of any better way to commemorate this remarkable year than purchasing handgun training courses for you and your loved ones in preparation for the concealed carry permit application. What better way to ensure a ‘safe’ and happy holiday season?

Could Obama Be Disqualified From The Election? The Federal Courts Will Decide

By Julian Dunraven, J.D., M.P.A.

(For updated information on the Motion to Dismiss, click here)

Honorable Friends,

For those of you unaware, Pennsylvania attorney Philip J. Berg has filed suit in the U.S. District Court for the Eastern District of Pennsylvania alleging that Barack Obama is not eligible for the Office of the President because Obama lost his U.S. citizenship when his mother married an Indonesian citizen and naturalized in Indonesia. Berg further alleges that Obama followed her naturalization and failed to take an oath of allegiance when he turned 18 years old to regain his U.S. citizenship status. The case is Berg v. Obama.

It sounds crazy, I know. It becomes even stranger when you realize that Berg is a lifelong Democrat, the former Democratic Chairman of Montgomery County, Pennsylvania, an 8-year member of the state democratic committee, and former Deputy Attorney General of Pennsylvania. This is not a simple crank, and after reviewing the court documents, I believe the case is fairly strong, and has amazing implications.

It revolves around Article II Section 1 of the U.S. Constitution which provides in pertinent part that:

“No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.”

To better understand the case, I recommend reading the complaint, Obama’s Motion to Dismiss, Berg’s Response in Opposition to the Motion to Dismiss, and Berg’s Motion for Summary Judgment. You can also read news about the case or donate to the cause by visiting Berg’s webpage.

Of course, the case is still developing and it is doubtful there will be any resolution before the election. If Obama loses the election, the case may be deemed moot and dismissed. If he wins, however, and Berg turns out to be correct, it would mean that we not only elected a man unqualified to hold office under the Constitution – we would have elected an illegal immigrant, who would then be disqualified from serving.

You might be wondering how our officials could have missed something so major. It is easy to do though if you think about it. Obama’s mother certainly used to be an American citizen. When he returned to the U.S. from Indonesia, how many government officials would even think to ask, “While away, did you or your parents happen to renounce your U.S. Citizenship?” It simply would not happen. Our officials would have proceeded as if Obama was a child of a U.S. Citizen. No one would know the truth unless he or his mother willingly revealed the information, or unless they were specifically examining Obama’s background in great detail..

I cannot even imagine the pressure this judge must be feeling, along with the Justices of the Supreme Court who will ultimately hear the appeal. Can you begin to hear the enraged screams of the rioters? Our courthouses will have to turn themselves into fortresses.

El Presidente and I will certainly be keeping a close watch on this fascinating case and provide updates as it develops. For now, however, I will leave you with the most interesting part of Berg’s argument thus far, taken from his Response in Opposition to the Motion to Dismiss and appended below.

* * * * * * * * * *

Even if Obama was, in fact, born in Hawaii, he lost his U.S. citizenship when his mother re-married and moved to Indonesia with her Indonesian husband. In or about 1966, when Obama was approximately five (5) years old, his mother, Stanley Ann Dunham, married Lolo Soetoro, a citizen of Indonesia, whom she had met at the Hawaii University, and moved to Indonesia with Obama. Obama lost his U.S. citizenship, when his mother married Lolo Soetoro, and took up residency in Indonesia. Loss of citizenship, in these circumstances, under U.S. law (as in effect in 1967) required that foreign citizenship be achieved through “application.” Such type of naturalization occurred, for example, when a person acquired a foreign nationality by marriage to a national of that country. Nationality Act of 1940, Section 317(b). A minor child follows the naturalization and citizenship status of their custodial parent. A further issue is presented that Obama’s Indonesian stepfather, Lolo Soetoro, either signed an acknowledgement acknowledging Obama as his son or Lolo Soetoro adopted Obama, giving Obama natural Indonesia citizenship which explains the name Barry Soetoro and his citizenship listed as Indonesian.

Obama admits in his book, “Dreams from my father” Obama’s memoir (autobiography), that after his mother and Lolo Soetoro were married, Lolo Soetoro left Hawaii rather suddenly and Obama and his mother spent months in preparation for their move to Indonesia. Obama admits when he arrived in Indonesia he had already been enrolled in an Indonesia school and his relatives were waiting to meet him and his mother. Lolo Soetoro, an Indonesian State citizen, could not have enrolled Obama in school unless Lolo Soetoro signed an acknowledgement acknowledging Obama as his son, which had to be filed with the Government. Under Indonesian law, when a male acknowledges a child as his son, it deems the son, in this case Obama, as an Indonesian State citizen. Constitution of Republic of Indonesia, Law No. 62 of 1958 Law No. 12 of 2006 dated 1 Aug. 2006 concerning Citizenship of Republic of Indonesia, Law No. 9 of
1992 dated 31 Mar. 1992 concerning Immigration Affairs and Indonesian Civil Code (Kitab Undang-undang Hukum Perdata) (KUHPer) (Burgerlijk Wetboek voor Indonesie) states in pertinent part, State citizens of Indonesia include: (viii) children who are born outside of legal marriage from foreign State citizen mother who are acknowledged by father who is Indonesian State citizen as his children and that acknowledgment is made prior to children reaching 18 years of age or prior to marriage; Republic of Indonesia Constitution 1945, As amended by the First Amendment of 1999, the Second Amendment of 2000, the Third Amendment of 2001 and the Fourth Amendment of 2002, Chapter X, Citizens and Residents, Article 26 states, “(1) Citizens shall consist of indigenous Indonesian peoples and persons of foreign origin who have been legalized [sic] as citizens in accordance with law. (2) Residents shall consist of Indonesian
citizens and foreign nationals living in Indonesia.”

Furthermore, under the Indonesian adoption law, once adopted by an Indonesian citizen, the adoption severs the child’s relationship to the birth parents, and the adopted child is given the same status as a natural child, Indonesian Constitution, Article 2.

The laws in Indonesia at the time of Obama’s arrival did not allow dual citizenship. If an Indonesian citizen married a foreigner, as in this case, Obama’s mother was required to renounce her U.S. citizenship and was sponsored by her Indonesian spouse. The public schools did not allow foreign students, only citizens were allowed to attend as Indonesia was under strict rule and decreed a number of restrictions; therefore, in order for Obama to have attended school in Jakarta, which he did, he had to be a citizen of Indonesia, as the citizenship status of enrolled students was verified with Government records.

Obama was enrolled by his parents in a public school, Fransiskus Assisi School in Jakarta, Indonesia. Plaintiff has received copies of the school registration, attached as EXHIBIT “4”, in which it clearly states Obama’s name as “Barry Soetoro,” and lists his citizenship as Indonesian. Obama’s father is listed as Lolo Soetoro, Obama’s date of birth and place of birth are listed as August 4, 1961 in Hawaii, and Obama’s Religion is listed as Islam. This document was verified by television show Inside Edition, whose reporter, Matt Meagher, took the actual footage of the school record. At the time Obama was registered the public schools obtained and verified the citizenship status and name of the student through the Indonesian Government. All Indonesian students were required to carry government identity cards, or Karty Tanda Pendudaks, as well as family card identification called a Kartu Keluarga. The Kartu Keluarga is a family card which bears the legal
names of all family members.

Since Obama’s birth was legally acknowledged by Lolo Soetoro, an Indonesian citizen, and/or Obama was adopted by Lolo Soetoro, which the evidence attached hereto supports, Obama became an Indonesian citizen and bears the status as an Indonesia natural child (natural-born). For this reason, Obama would have been required to file applications with the U. S. State Department and follow the legal procedures to become a naturalized citizen in the United States, when he returned from Indonesia. If Obama and/or his family failed to follow these procedures, then Obama is an illegal alien.

Regardless of whether Obama was officially adopted, (which required a Court process), by his Indonesian stepfather, Lolo Soetoro, or his birth was acknowledged (which only required the signing of a birth acknowledgement form), by Lolo Soetoro, one of which had to occur in order for Obama to have the name Barry Soetoro and his citizenship status listed as “Indonesian”, in either and/or both cases Obama’s name was required to be changed to the Indonesian father’s name, and Obama became a natural citizen of Indonesia. This is proven by the school records in Jakarta, Indonesia showing Obama’s name as Barry Soetoro and his citizenship as Indonesian. Again, the registration of a child in the public schools in Jakarta, Indonesia was verified with the
Government Records on file with the Governmental Agencies.

The Indonesian citizenship law was designed to prevent apatride (stateless) or bipatride (dual citizenship). Indonesian regulations recognize neither apatride nor bipatride citizenship. In addition, since Indonesia did not allow dual citizenship neither did the United States, Hague Convention of 1930.

In or about 1971, Obama’s mother sent Obama back to Hawaii. Obama was ten
(10) years of age upon his return to Hawaii.

As a result of Obama’s Indonesia “natural” citizenship status, there is absolutely no way Obama could have ever regained U.S. “natural born” status, if he in fact ever held such. Obama could have only become naturalized if the proper paperwork was filed with the U.S. State Department, in which case, Obama would have received a Certification of Citizenship.

Plaintiff is informed, believes and thereon alleges Obama was never Naturalized in the United States after his return. Obama was ten (10) years old when he returned to Hawaii to live with his grandparents. Obama’s mother did not return with him, and therefore, unable to apply for citizenship of Obama in the United States. If citizenship of Obama had ever been applied for, Obama would have a Certification of Citizenship.

Furthermore, Obama traveled to Indonesia, Pakistan and Southern India in 1981. The relations between Pakistan and India were extremely tense and Pakistan was in turmoil and under martial law. The country was filled with Afghan refugees; and Pakistan's Islamist-leaning Interservices Intelligence Agency (ISI) had begun to provide arms to the Afghan mujahideen and to assist the process of recruiting radicalized Muslim men--jihadists--from around the world to fight against the Soviet Union. Pakistan was so dangerous that it was on the State Department's travel ban list for US Citizens. Non-Muslim visitors were not welcome unless sponsored by their embassy for official business. A Muslim citizen of Indonesia traveling on an Indonesian passport would have
success entering Indonesia, Pakistan and India. Therefore, it is believed Obama traveled on his Indonesian passport entering the Countries. Indonesian passports require renewal every five (5) years. At the time of Obama’s travels to Indonesia, Pakistan and India, Obama was twenty (20) years old. If Obama would have been a U.S. citizen, which he was not, 8 USC §1481(a)(2) provides loss of nationality by native born citizens upon "taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state...after having attained the age of eighteen years”, in violation of 8 U.S.C. §1401(a)(1) Since Lolo Soetoro legally acknowledged Obama as his son and/or adopted Obama, Obama was a “natural” citizen of Indonesia, as proven by Obama’s school record attached as Exhibit “4”.

Vote No– The Government Says So

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

The U.S. Drug Enforcement Agency (DEA) has decided Colorado citizens need assistance from the federal government in deciding how to vote this November. Specifically, the DEA doesn’t want mere citizens getting confused about what’s good for them and voting to legalize something as terrible as possessing an ounce of marijuana. Thus, the federal government is condescending to inject itself into our state ballot process and campaign against this initiative. “DEA raises cash to fight pot issue.” Already, the DEA has $10,000 to spend on its campaigning efforts.

The agency tells us we shouldn’t worry about this, though, and that their efforts are completely legal. Given that the applicable law was designed to prevent the executive agencies from partisan campaigning, and did not contemplate non-partisan ballot initiatives, the DEA may in fact be correct that it is acting within the technical bounds of law, if not its spirit. Still, it is rather telling that the DEA’s campaign fund comes from private donations and not tax dollars, despite the DEA’s contention its actions are proper. Surely, if the agency directors are avoiding the use of tax money, it must occur to them on some level that their actions are wrong.

Whether one agrees with Amendment 44 or not, the actions of the DEA should worry us all. The executive branch of government is designed to enforce the laws. Yet, the executive branch has become so large, that Congress cannot possibly have time to deal with all the issues that arise as each executive department carries out its mandate. Thus, executive agencies have the power to create administrative policies and regulations in their spheres of influence that are every bit as binding as legislatively made law. Thus, they have taken on a good deal of legislative power as well as executive. Moreover, many federal agencies have their own administrative courts to oversee disputes arising from their actions, thus assuming judicial power. This is a huge collection of power in the executive branch. Now, the executive branch seeks even to assert itself into citizen law making processes by telling people how to vote. This is simply too much. We must restrain this behemoth, many headed monster that is the U.S. executive branch.

Now, to be fair, I do not doubt that the input of the DEA might be useful in debating Amendment 44. However, that input should be solicited by citizen opponents of the amendment. It is those independent citizens who should then be raising money to campaign against the amendment, and they who should decide how to use the DEA’s information in that campaign. The DEA and the executive branch of the federal government should not be intervening in our state elections to tell our people how it thinks we should vote. Last I checked, that sort of behavior was expected of Communist and Socialist regimes. In this country, the people are supposed to be telling the administration what to do—not the other way around.

We have grown used to a sort of nanny state in this country. We have decided that we want our government to provide certain programs as safeguards against our own stupidity. So be it. If, however, we now truly desire a state that eliminates even the need to think for ourselves, a state all to happy to tell us what our opinion should be, then we have no business calling ourselves a free country. We should simply shut up about those annoying things called civil liberties, take our state issued pacifiers, and let the government do whatever it thinks best. As I am not quite ready for permanent mental infancy, I think it would behoove Congress to amend the Hatch Act, and prevent the executive branch from campaigning period.

Judge Rules Against Bush for Wiretapping Without Warrants: Triumph or Tragedy?

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

All day long, I have listened to the shrieking of my conservative friends as they denounce the ‘terrible’ decision by a U.S. district court judge to end the Bush administration’s warrantless wiretapping program. ACLU v. NSA. It seems they think the honorable judge has put all of national security at risk with the naive notion that we can fight terrorism according to the same rules we use to fight common criminals. Knowing the miserable quality of reporting the major media sources continually exhibit on questions of law, I understand why they hold such a dismal opinion of this case. However, having read the honorable judge’s opinion myself, I am thoroughly convinced that she has actually strengthened national security, and that conservatives would be the last people to take issue with this decision if they only took the time to read it. It is based soundly in traditional conservative principles. Let me see if I can condense it here.

First, no state secrets were ever at risk. The court considered the legality of the wiretapping program based on statements the Bush administration has already made public: (1) The wiretapping program exists. (2) The Bush administration monitors communication between U.S. citizens and people overseas suspected of having some connection, to a terrorist organization. (3) The monitoring is conducted without warrants.

In considering these facts, the court looked to our history. It pointed out that searches and seizures without warrant were among the offenses committed by King George III against the American colonists prior to the Revolutionary War. These searches terrified the people and chilled any speech or publication that might criticize the King for fear of being labeled seditious. After the American Revolution, the Founders enshrined two amendments into the Constitution in order to prevent such abuses from ever occurring again. We now know these as the First and Fourth Amendments to the U.S. Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.--U.S. CONST. Amend. I.

The right the of people to be secure in their persons, houses, papers, andeffects, against unreasonable searches and seizures, shall not be violated, andno Warrants shall issue, but upon probable cause, supported by Oath oraffirmation, and particularly describing the place to be searched, and the persons or things to be seized.--U.S. CONST. Amend. IV.

These two amendments work together to protect some of the most basic liberties we hold so dear. However, Congress is mindful, too, that when it comes to national security, the obligations of these amendments might be too cumbersome to carry out in the ordinary course of business. Thus, Congress passed the Foreign Intelligence Surveillance Act (FISA) as, “the exclusive means by which electronic surveillance of foreign intelligence communications may be conducted.” 18 U.S.C. §2511(2)(f). This act sets up a special and secret court to grant surveillance warrants to the administration. Acknowledging the need to act quickly in matters of national security, it even gives the administration up to 72 hours after already beginning surveillance to seek a warrant. And so Congress has wisely provided for the administration to see to the needs of national security, while still permitting to judiciary to ensure the protection of civil liberties.

The Bush administration, however, has argued this is insufficient. It claims the President, as Commander in Chief of the Armed Forces under Article II of the U.S. Constitution, should have the right to see to matters of national security as he sees fit, independent of the laws of Congress and the warrant reviews of the judiciary. As one of the great Founders, James Madison, wrote in the Federalist Papers, though, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” THE FEDERALIST NO. 47. The court refused to allow President Bush to usurp both the Legislative and Judicial branches of government, and reminded the President that he is sworn to uphold and abide by the entire Constitution, not just Article II.

“He has affected to render the Military independent of and superior to the Civil power. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation .”-- The Declaration of Independence

Thomas Jefferson wrote those words over 200 years ago describing a few of the offenses committed by King George III against the American colonists. Today, they could as easily apply to the warrantless wiretapping program of President George Bush II—or they would had the court not stuck it down. In this case, the court defended the U.S. Constitution and the liberties it enshrines, protected the separation of powers from dissolving into tyranny, and provided legitimate means for the defense of this country—all principles long cherished by conservatives. In the end, the court managed to strengthen our national security, both against the terrorists that seek to destroy us from outside our borders, and the possibility of tyranny that could destroy us from within.

As the court noted in its conclusion, “Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution. As Justice Warren wrote in U.S. v. Robel, 389 U.S. 258 (1967):

Implicit in the term ‘national defense’ is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which makes the defense of the Nation worthwhile. Id. at 264.”

Gay Rights, the Clash of Civilizations, and the Danger of Moderates

By Julian Dunraven, J.D., M.P.A.

After my last posting, I received a few comments telling me that I am underestimating the importance of the clash of civilization between the Islamic world and the West. I beg to differ. Though my last posting may have carried a whimsical flavor, I am well aware of how deep the differences go.

This November, the people of Colorado will vote on no less than three ballot issues dealing with gay rights. In this country, in this state, that means we will argue over the minutia of various legal rights possessed by married couples and whether to extend those legal rights to gay couples. Members of the GLBT community are, arguably, the most disenfranchised citizens of the United States, and yet the most important issue affecting that group at the moment is the bundle of property rights that go into making a legal marriage. If a country’s level of civilization can be judged by how it treats its underclass citizens, than I would say the United States is doing fairly well.

Now, let us compare U.S. civilization with that of Iraq. There, gay rights do not even begin to contemplate the nuances of various property claims and marriage contracts. In Iraq, those who support gay rights ask only that homosexual people be allowed the right to live at all. Jennifer Copestake reports in The Observer that Shia death squads now roam the land executing gay men. “Gays flee Iraq as Shia death squads find a new target.” Barbaric as that seems, it is made worse by the fact that these death squads also target and execute young boys who have been forced into prostitution.

One might think the new Iraqi government and law enforcement would be appalled by such behavior. But one would be wrong. You see, under Islamic law, or Sharia, homosexuality is so reviled that to kill a gay man is no crime at all. Rather, it is considered an honor killing and will actually increase the killer’s chances of getting into heaven. Anyone who doubts this has only to visit the Middle East Research Institute’s TV Monitoring Project and view its collection of clips from Arab networks on homosexuality. In one notable clip from MEMRI TV, Saudi cleric 'Abd Al-Qader Shiba Al-Hamad, a teacher at the Al-Nabawi Mosque in Al-Madina, elaborates on the proper means of killing homosexuals: by flogging, beheading, or rolling down a mountain until dead. Under Islamic law, the underclasses of society have no rights, and should count themselves lucky just to survive.

I am well aware that this barbaric view does not dissipate merely through interaction with our Western culture. Many terrorists, dedicated to the absolute destruction of the West, have received their educations here in the United States or in the United Kingdom. Yet, they do not see our successes and freedoms; they see only our ‘sinful’ opulence and the riches their own nations do not have. I stand by my previous statements that, in the end, our trade and cultural exports can succeed in willingly seducing the Islamic world to our way of life. However, I also reiterate that those demanding that all people either follow the strict dictates of Islam or face death must themselves learn the meaning of fear and terror. Those who would force this barbarism on others must be met with merciless opposition.

This is not a politically correct view at the moment, I know. In this past week, I have heard the media bleat endlessly about the dangers of offending moderate Muslims. This, however, seems utterly ridiculous to me. Moderate Muslims should be offended. They should be shocked and appalled by the behavior of their fellow Muslims and the barbarism of Islamic law. I am beginning to agree with Dr. Martin Luther King Jr. in his low opinion of so called ‘moderates.’ In his “Letter from Birmingham Jail,” expressing his frustration with white moderates, he states that, “Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.” Similarly, in the current situation, it is far more difficult to understand the ‘moderate’ Muslims who see the evil and barbarism of their fellows and do nothing than it is to understand those terrorist Muslims acting under the delusion of righteousness. Those who see evil and do nothing are more terrifying to me than those too stupid or deluded to see the evil in the first place.