Happy Fourth of July 2011

Well in a few hours our nation celebrates its Independence from the Tyranny of the British Royal Crown. A few years after the decision to cede from British rule and after a war, we finally settled on a Constitution (there was a loose confederacy of states before that but we ultimately chose a federal system of government)to govern us. This Constitution tried to embody as much of the Declaration of Independence as it could, however the original document was thought lacking by the Declaration's author Thomas Jefferson, so he persuaded his friend John Madison to lobby through an embodiment of the Rights of Man our American Bill of Rights.

Jefferson wanted to preserve the fervor and feelings of his Declaration of Independence which begins with a statement about the self evident nature of the rights of man (meaning God Given rights) but he was well aware that tyrannizing politicians could do away with these rights as the King did to the Colonialists. Jefferson, wary of a big federal government wanted to limit the abuses that could become our government if Monarchists ever obtained an upper hand in our government.

In a large sense however, the Monarchists may have won if the goal was a large centralized government and a federal presence in the decisions of our daily lives such that the states have little to say about how they run themselves and we as citizens have little access to our Representatives. Our leaders appear only on news shows and before reporters who will report their views their ways and will not ask hard questions. Both major parties favor large government when it suits them and states rights when it doesn't.

For example Republicans favor states rights on Abortion and Immigration policy because they can't seem to get control of the federal government long enough to shove their view down our throats.On the other hand, they want a federal standard if a state doesn't follow their lead on an issue. In other words "States who agree with us get rights the rest of you be damned."

Democrats want state government to decide issues such as gay rights and gambling because they can't get the votes to work these out to their constituency favor on a national level. They favor state rights to decided what a marriage is, but would not allow states to determine what a "life" is.

I don't care where you stand on the issues of Abortion, gay marriage, Internet poker or the like. I care that things are actually interpreted by our Constitution with a view toward the Jeffersonian approach to our government. I'd also like to see a sense of shame when a party acts hypocritically.

Here is how some of this would shake out under my view of the world. Interstate commerce and Immigration policy are national in scope as are issues of Defense. These areas are reserved for Federal control. The Internet is also a federal issue, why? Because it is EVERYWHERE!

Health, Sex, Gambling, all criminal activity except for terrorism, treason, bank/mail/and wire fraud are state issues. There is an exception to that and that is that the Fraud must not just use the wires or mail to be committed, but must be committed against citizens or corporations on a national scope. Hence just because someone in NY calls someone else in NY to commit a fraud on a NY corporation, that use of the phone would not make for a federal case just because the phone line routed the call through a national grid of phone lines etc.

In my world, elementary education would be left up to the states, civil rights are federal. Secondary education (High school and up would be a mixture of Federal and State control depending on the issue however as somethings (like law or science) are things that need to be shared nationally we do need some national standards.

The feds could set standards that each state need to meet in the area of dealing with the imprisoned or the poor, but it would be up to the states to implement the standards. Economic Policy is a shared item as well. National Parks need to be part of a 3 way discussion Fed, State and local governments need to participate together. OTOH, the feds need to stay out of our homes, our hotel rooms our bank accounts and anything else that concern us as individuals.

Anyway, I could go on, and I will, but I want to know what you think of this whole concept of Independence. What does it mean to you, not personally, but as it relates to how we as citizens obtain a government that will uphold our right to live and conduct ourselves in the freest of fashions.

Edited to add a couple of links and clean up some spelling errors.

Judge to School District: "PISS OFF!!" & Let the Kids Play Chess!!

Sometimes I love writing the title of these pieces can you tell? :P

When has a school district "nanny stated" itself too far?? Well in California, it seems that when the Shasta Union High School District wanted to drug test kids on the CHESS TEAM, a court said, uh NO!!! (Emphasis added...)

The district wanted to know who was using drugs so that they could ban them from school trips and other activities. So if the kid was in the Band, played on the Chess Team or was raising a pig for the state fair, he had to pee in a cup first. The reasoning is that the school has to supervise these kids while they are on school trips and if they are in a club or in the band they are more likely to have to go on overnight trips and they might be harder to supervise if they use drugs or alcohol. Brilliant! So we will just keep them out of supervised activities so they can take part in unsupervised activities... (No wonder Johnny can't think. These people have no idea about teaching anything.)

Now I have had the pleasure of "chaperoning" a few Forensic overnight trips, and while they have the ability to get out of hand, they don't, because DEBATE CLUB KIDS CAN'T DO DRUGS AND STILL PERFORM WELL!!

I have a feeling the same goes for members of the CHESS CLUB! Not to mention, it is far harder to play classical flute music than to improvise a new riff while you are high. Nonetheless, these examples of student spirit were told "pee in the bottle or no Drama club."

Now the SCOTUS, which is filled by people so old they don't remember BEING in High School, ruled about a dozen years ago that you can force a kid to take a drug test if he is even attending your school. Justice Marlow the judge in the case at bar held that under the California State Constitution the right to privacy is protected. One can debate whether such a right is in the US Bill of Rights, but Californian's passed this right in 1972.

I think the court in this case is right. It is the good kid who must give up his or her right to privacy while the slacker who does nothing in school but shows up can come and go as he pleases. Moreover, it shouldn't be a rule that to participate you have to allow someone to watch you urinate in a cup. High school is hard enough without having to pass every adult test. I'd like to know what you think however.

I could not find a copy of the decision to post, so if you know of one, pass it to me ok?

Thanks, TLD.

Hattip: Raw Story

Police Use GPS and Google to Find a Kidnapped Child.

I spend a lot of time on this blog criticizing police and Prosecutors. It isn't that I don't like them. It is that I think that since they represent the "people" I think they need to be held to a higher standard of conduct than any individual person.

When they "get it right" (and they do get it right far more often than not) however, I think they deserve to be acknowledged. Athol Police Officer Todd Neale managed to track down the missing girl by obtaining coordinates of her cell phone from the phone’s carrier and using Google Maps and Google World to locate the motel where she was being held.

Nice Job Officer Neale.

Full story here

A Sunday Jog Around the Blogosphere

Wow what a busy week. 8 posts in one week!! Pretty good especially for me. I doubt I will be quite so prolific this week as I am going to be back on a suppression hearing on Tuesday and maybe Wednesday in People v. Ronald "Shorty" Rodriguez, before the Hon. Meryl Berkowitz in Nassau County Court. Later in the week I will be in NYC for the 50th Anniversary of the NACDL. I may do a few blogs from there. I am excited because I am serving on the Nomination committee. Fellow Law Blogger and President-elect John Wesley Hall asked me to serve and I am very honored.

So as it is Sunday, I am going to again jog around the blogoshere with you. Here are a few things that caught my eye this week that I didn't get to write more about but you may want to look into yourself:

1. That Exotic Darlin' of the Neo-Con set Michelle Malkin asks the blog question, are US banks Knowingly Laundering Drug Money for Mexican Drug Cartels?? Michelle's take is that illegals, are here, sending money there (Mexico) through non-banks called "casas di cambio." American banks wanting some of the action offer these CdiC's a place to put large amounts of money and will look the other way if some of the money comes from the drug trade.

Michelle's neo-con answer is of course to prosecute the banks the illegals and the democrats. MY answer is better. Legalize the Drugs and tax same, put the money to use to help people beat their addictions, and open the borders correctly with a sane immigration policy that will not cripple US businesses.

Hmmm... Deport workers, cripple our economy, jail Americans for trying to make a living, jail more people for feeding their addictions, ruin foreign governments by making Criminal's rich and cost the American Taxpayer gazillion dollars for a drug war we could end with the stroke of a pen versus A sane immigration policy and drug policy... Ok she is sexy (especially compared to that shrieking idiot of the rightamortis, Ann Coulter ) but her views are silly.

2. I will never figure out the Federal Prosecutor's fascination with rebuttal witnesses. I guess they feel that it gives them a chance at primacy and finality two forensic speaking techniques. On the other hand, watching a case go in over seven (7) weeks and then blowing up on rebuttal just makes me question two things: to they think the defense isn't aware of their games and can not counter them? and Why do they think the jury needs to hear the same stuff over and over again? Anyway, the Pellicano case in L.A. Federal court is about to go to a mistrial... seems that the rebuttal witness they called to contradict the defendant's testimony on a minor issue, committed perjury and will have to take the 5th amendment on Monday. She was to be the final witness. Shame on the US Attorney's office in L.A. for doing a shabby job of investigating their own witness. Talkleft has some coverage here.

3. Pittsburgh Pa. has become an adoptive second home for us. We go there for some of my wife's medical treatments. The City is made up of many really nice people. Then of course there is their US Attorney, but she is a story for another post.

For now, here is a story about a guy who was arrested for complaining too much in a bad tone... A little subjective no?? Anyway he was convicted by a jury and it is on appeal... I can understand how one might want to be respected for working in public service. On the other hand I can also see how one might get fed up with the failure of certain public servants to do their jobs. What I cannot see is someone being convicted for complaining to a public servant about the job they do. Taking complaints is in the job description. As long as it is not abusive language tone shouldn't matter. (I am not sure abusive language should matter either but that too is another post.)

Hattip: to Radley Balko at The Agitator

In a related post over at the CrimProf Blog there is a story about a guy who got 15 years for sending governmental officials threatening letters.
4. "Romeo, Romeo, Where fore art thou Romeo..." Well both Romeo and Juliet are over at the Volokh Conspiracy this week where Professor Eugene Volokh, the head conspirator looks at the reason's behind Romeo and Juliet sex laws (laws that outlaw sex between adults and minors of a certain age but allows the sex if the lovers are born within a certain amount of time of each other. On first blush, it seems that Prof. Volokh is in favor of pedophiles, however when you look at his questions he does seem to put those laws under a light of logic and they do not come out all that well.

5. Some Good and Bad News about the Fourth Amendment in the news this week.
The blogosphere is abuzz with news out of California about the Ninth Circuit agreeing that laptops can be searched at screening at airport screening stations.

Meanwhile in NJ. the Supreme Court stunned prosecutors in ruling that people do have a fourth amendment protection in their ISP carriers information.

6. New and scary uses for DNA. Now it will be guilt by blood association. See this post for more information. Coming 0n the heels of Judge Weinstein's decision in , there may be a trend toward bringing Fourth Amendment law into the open and up to date with this century.

And that's our jog round the blogosphere. See you around. It should be an exciting week.
TLD.