A week after an Iowa court ruled in favor of same-sex marriange, a Maine court has removed the legal barrier to gay couples wishing to adopt. For the story, click here It remains one of the great contradictions of some states — preferring to leave children unadopted rather than allow a same-sex couple to raise them. It is a considerable price to pay — a price paid by the children.
Category: Constitutional Law
The Iowa District Court for Polk County has ruled that the state constitution requires recognition of same-sex marriage. The decision will likely serve to fuel the presidential debates on the subject and force some candidates to embrace the constitutional marriage amendment. Continue reading “Iowa Court Rules In Favor of Same Sex Marriage”
The proposal to divide California’s electoral votes has served to remind citizens of the continued dysfunctional role played by the electoral college — which should be eliminated by constitutional amendment. The idea of passing state laws to divide votes between candidates is at least an improvement — moving away from the winner take all approach. In California, it is clearly be advanced for partisan reasons to help the next Republican nominee. Continue reading “California Electoral Vote Plan: A Worthy Proposal Made For Unworthy Purposes”
The Washington Post is reporting today that the government in 2006 flagged roughly 20,000 people as suspected terrorists. It is a report that seems to confirm that the Administration’s new powers have allowed it to pursue thousands on the weakest of possible suspicions. Only a handful have been prosecuted and most of those have to minor or unhinged characters. The question remains the cost of this massive population of citizens under suspicion and a government system that seems to replicate itself — growing ever bigger while desperately trying to find suspects to justify its costs and personnel. This is not to say that we should be less vigilant. Rather, these figures show a hair-trigger mentality where citizens are thrown under investigation with little cause or remedy.
For the Post story, click here
Published May 2002
This month, U.S. officials are still at wit’s end trying to figure out what to do with Citizen Hamdi. Yasser Esam Hamdi is the twenty-two-year-old who arrived at Guantanamo Bay, Cuba with the one item that no “battlefield detainee” should leave home without: a U.S. birth certificate. This has led to Hamdi’s transfer to Norfolk, Virginia, and what seems chronic indecision within the Bush Administration in how to handle his case. Despite the fact that Hamdi was only in Baton Rouge, Louisiana for a brief time, it was long enough to be born and to claim to be a “dual citizen.” Continue reading “Yasser Hamdi, Dual Citizenship, and the Future of National Identity”
Published May 2002
Constitutional scholars and weatherman share an unstated fascination with the worst conditions; the freak storms that join together to release fantastic energy and fireworks. A fight is brewing in Washington this week that may produce such a perfect constitutional storm. All three branches of government are now colliding over the question of who controls access to presidential papers. The outcome of this fight, however, may also redefine aspects of executive privilege as well as core principles of open government.
Continue reading “Bush, Presidential Records Act, and History”
Published pril 26, 2002 /
In a hearing this week, the public heard for the first time from Zacarias Moussaoui, the so-called “20th hijacker” on trial in Virginia. If Moussaoui was indeed trained to seek suicidal expression, he was in rare form in Virginia where he is attempting the closest legal equivalent. Continue reading “Zacarias Moussaoui and the 20th Hyjacker”
Published April 12, 2002
One of the most interesting facts about George Orwell, author of 1984 and Animal Farm, is that he was not George Orwell. The man who created a society of total transparency and observation chose to conceal his own name, Eric Blair. Authors like Blair, Mary Ann Evans (George Eliot) and Samuel Clemens (Mark Twain) adopted nom-de-plums for a variety of reasons ranging from persecution to prejudice to privacy. Continue reading “Anonymity and the Constitutional Right to be Nameless”
Published April 5, 2002
This month, Associate Justices Stephen Breyer, Anthony Kennedy, and Antonin Scalia faced a challenge that any union field organizer could well appreciate. In a little reported opinion, these three justices lamented the failure of their colleagues to join them in taking a case over judicial compensation and reinforcing their position vis-à-vis their employer. In a case filed by federal judges, these three justices saw the case as a challenge to judicial independence by Congress but faced deafening silence from their other six colleagues. Writing a rare dissent in the Court’s declination of review in Williams v. United States, Justice Breyer revealed a solid core of support for reviewing, and possibly reshaping, a fundamental clause in Article III. Continue reading “COLAs, the Courts, and the Constitution”
Published March 11, 2002
LOTTERY systems are simply irresistible for many citizens. While most people realize that playing a lottery is more recreational than rational, it is a small sum to enjoy the fleeting possibility of a windfall fortune. But what if the stakes were increased to play for your life? As bizarre as this suggestion might seem, millions of travelers participate in precisely that type of lottery each month. After Sept. 11th, the airlines decided to rely a random search program rather than using a comprehensive profile selection system. As a result, 40 million air travelers each month, participate in a system that has as low a chance of success as a state lottery with their lives in the balance. Continue reading “Passenger Profiling and the Terrorist Lottery”
Published an. 25, 2002
THIS week marked the return of America’s most curious prodigal son. The long-waited transfer of John Walker Lindh to federal custody has focused the nation’s attention on what to do with the 20-year-old jihadi from Marin County. Regardless of Lindh’s potential criminal liability, there remains the question of his right to be called an American citizen, a son of the nation that he abandoned. Continue reading “John Walker Lindh and the Right to Citizenship”
Published Jan. 21, 2002
IN 1014, Byzantine Emperor Basil II had a bit of a problem. He had decisively defeated the Bulgarian tsar and taken virtually the entire opposing army captive. Basil II was not keen on feeding and holding more than 14,000 prisoners of war, but he also was not inclined to release an entire army that could simply turn around and resume hostilities. His solution was both chilling and simple: He divided the army into groups of 100 and blinded 99 out of each group. He left one man with one eye in each group to lead this line of wretches back to the Bulgarian tsar. Continue reading “Emperor Basil II and America’s Secret Prisons”
Published Jan. 14, 2002
THIS month, a little-known group is meeting to take a step that may affect every citizen of the United States. The American Assn. of Motor Vehicle Administrators has announced it will create a de facto national identification card. The association reportedly is working with the Justice Department and the General Services Administration to create a system with a massive database encompassing every citizen. Thus largely unknown bureaucrats could create a kind of human license plate to track and restrict our movements–anathema in the U.S. In the past, it was technically impossible or prohibitively expensive to monitor more than a fraction of the population at any given time. But recent advances in technology have removed these barriers. The only thing missing was a catalyst–some event that would substitute immediate security concerns for abstract notions of privacy. That took place Sept. 11. Continue reading “National Identification Cards and the America’s Fishbowl Society”
Published December 2001
IN Afghanistan, all politics are tribal. National governments, like the recently announced interim government, are examples of the triumph of hope over experience. Of course, no American official wants to suggest that the new government should be shaped in our own image at the risk of appearing culturally chauvinistic or insensitive. While understandable, this reluctance is tragic because James Madison has much to offer the Mujahedeen including a system that is designed to handle the very thing that is tearing their country apart. Continue reading “James Madison and the Mujahedeen”
Published October 2001
THERE was a time when the idea of an incapacitated Congress would have been greeted with considerable relief by most citizens. In what may be the ultimate sign of our times, a constitutional amendment has been proposed to address what was once the unthinkable: the death or incapacitation of one-fourth or more of the members of the House of Representatives. This amendment, introduced by Rep. Brian Baird (D, Wash.), cannot be easily dismissed. The Constitution does in fact have a blind spot that makes the system vulnerable to terrorism. Continue reading “Terrorist Attacks and an Incapacitated Congress”