Cowboy Confessional

A military tribunal asserts jurisdiction over persons held in military custody and stand accused of being enemies who have violated a law of war.

Incompetency can be a collective trait as well as an individual affliction.

Take the case of Eric Holder, the temporary attorney general in the temporary Obama administration. In the world of constitutional law, central principles and obvious conclusions are common. The nation’s lead lawyer needs to be competent, which means understanding The Law. Yet before taking the Justice Department helm, Holder signed an amicus brief in the Supreme Court Heller handgun ban case, arguing that “the right of the people to keep and bear arms” was not a right, nor of the people.

All nine of the Supremes concluded the opposite (though four robed bandits argued that the right could be modified by legislation).

Little is plainer in American law than our list of enumerated prerogatives, quaintly called the Bill of Rights. So solid was the assumption that the Second Amendment, like the others nine, conferred an individual right, that this interpretation was called the standard model. Yet Holder’s incompetency led him to humiliation by publicly arguing the inane opposite.

Which in turn led him to be nominated by Obama to take the top job at the Justice Department.

Like birds with similar plumage, incompetents tend to cluster but congregate around the most maladroit member. And as another failed politician noted “The fish rots from the head down.” In recent weeks we have seen serial incompetency from the Obama Bunch, including but certainly not limited to:

• Scaring women from coast to coast with new and mixed messages about breast cancer
• Ram-rodding a health insurance bill that the 85% of people with coverage oppose
• Bowing to an Emperor though it is not part of American presidential protocol
• A “stimulus” job creation tracking web site that listed non-existent jobs in non-existent congressional districts

But the best of the worst, the cream of the crap if you will, was Holder’s decision to bring Khalid Shaikh Mohammed to New York for trial. Ignore if you can that Khalid confessed to the war crime that was 9/11, that the military tribunal is the normal venue for trying such case, that Khalid was already “in process” under a military tribunal and that he asked for a conviction and execution. Ignore too – if possible – the inevitable terrorist activities that will be planned and probably executed once Khalid and his co-conspirators are in the Big Apple. Ignore again that the procedures in civil trials allow Khalid’s lawyer to obtain sensitive intelligence information. Ignore that never before has an enemy combatant caught on the battlefield has been tried in civilian court, but Holder was unaware of this and responded to questioning saying that he would “have to look at that.” The combined loss of opportunity (discontinuing a military tribunal which would have most likely resulted in a conviction) and the increased danger to civilians (very few of those at Guantanamo) makes Holder’s decision incompetent beyond even Obama’s standards.

Naiveté creates one brand of incompetence.

When grilled by Senators about his demented decision, Holder made a series of statements that displayed his denseness (as if it were in doubt). Most instructive of his inanities was his assumption that in getting a conviction “failure is not an option”, like the failure he encountered convincing the Supreme Court to ignore a standard model and the right of the people. In simple civil trials, there is always the possibility of procedural errors that let criminals escape on a technicality. Hung juries can lead to acquittals. Terrorists blowing up a court house can nullify a conviction.

Failure may not be an ‘option’ but it can be an outcome, the probability of which is increased if an incompetent is in charge of prosecution and if another is his boss.

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Old bigotries never die, they just metamorph into more nuanced prejudice.

The problem is that old bigots fade about as slowly.

I am assuming that Keith Bardwell is an older man. Bardwell notes that he has been a justice of the peace in Tangipahoa Parish, Louisiana for 34 years. Assuming that Bardwell was not elected at birth (and given Louisiana politics and corruption, this is not out of the question) he is likely approaching or has achieved dotage. Thus some of the peculiar notions onto which old folks cling are understandable.

Until those notions are inflicted upon the citizenry.

Down south where Bardwell dwells as I once did, race relations are a messy affair. When Dixiecrats and other dinosaurs roamed the swamps, racial hatred was institutionalized in many pockets of prejudice. These districts, which thanks to George Wallace included the better part of Alabama, were the functional minority. Most southerners had worked together for centuries and were largely unaffected by race. Some of our ugly minded cousins occasionally obtained office – either public, in their local Klan chapter, or both simultaneously. These Crackers with Credentials were the unfortunate face of The South and ones which modern media amplified into an unrealistic caricature of southerners in general.

That’s the media’s job – the amplification their own prejudices.

Over the eons, as air conditioning permitted Yankees to relocate in the lowest of the 48, the myth of wall-to-wall racists faded. When one of the few and rapidly dwindling dimwits sounded, the majority of honorable southerners would wince in embarrassment while reaching for a shotgun. Yes, bigots are stupid, but they are bright enough to understand the downside of buckshot.

With the possible exception of Keith Bardwell. I fear intelligence has stealthfully bypassed him, which explains why the only work he can find is in elected office.

Being a justice of the peace is lowest rung on the judicial ladder and mainly involves paperwork and petty crime adjudication. One of Bardwell’s burdens is to pass out marriage licenses, a nominal task as the only criteria for obtaining one is that both parties are adults and that neither is already married to someone else (the latter being negotiable in parts of Utah). Ancillary issues are not criteria for denial of a license to surrender your freedom and happiness via wedlock.

Except in Tangipahoa Parish.

Seems a 30+ couple came to Bardwell seeking the requisite paperwork to legally bind them together … and were refused. Bardwell, scraping together what only in his alleged mind could pass for logic, said that that his concern was for any children the interracial couple might spawn (which shows Bardwell is completely unaware of out-of-wedlock birth rate in his state – a lack of marriage being no obvious barrier to bayou babies). His assertion is that mixed race progeny are problematic, saying “I think those children suffer and I won’t help put them through it.”

Then in a fit of oxymoronic muttering Bardwell claimed “I’m not a racist. I just don’t believe in mixing the races that way.”

Ignoring for a moment that justices of the peace are not empowered to make such judgments nor deny a license outside of legislative criteria, we must wonder foremost if the allegedly good people of Tangipahoa Parish had any inkling of Bardwell’s mental illness. The parish is not minor backwater after all. There are over 100,000 people residing there and household incomes indicate that Tangipahoa tenants are at least properly educated, a benefit forsaken by Bardwell.

“I didn’t tell this couple they couldn’t get married. I just told them I wouldn’t do it.”

What makes Bardwell’s buffoonery amusing is that the sitting governor of Louisiana is an East Indian, and several shades darker than the man Bardwell refused to license. Since Jindal is a Republican, Bardwell’s Dixiecrat buddies will no doubt find a way to blame this situation on the Governor.

The problem with prejudice is generational. Old men harboring ancient ideologies linger longer than we like. We must tolerate their company since beating old people is in bad form. Removing them from positions of power is not, and Bobby Jindal needs to make a public example of Bardwell … before the Dixiecrats find a way to pin this episode on the Republican Governor.

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You can almost feel Internet cables connected to constitutional law clusters buzzing.

Justice Souter has barely announced his retirement and already the pundits, politicos and prognosticators have leapt to the keyboards, predicting how the judicial bull chips will fall. Activist on the right predict Obama will nominate a hard leftist who views the Constitution as a minor impediment to centralized power. Left-of-center court watchers believe the same thing and actively pray for it.

Some say it won’t make a difference because such a candidate would merely replace one steaming bowl of fetid judicial excrement with another.

I’ll admit I don’t have a complete accounting of Justice Souter’s misdeeds, but two rulings acknowledge that his respect for the express written will of the American people lies somewhere below his feet. America’s list of enumerated rights includes those that The People held holy and denied government the authority to restrict. Yet in two glaring instances Souter sought to redefine the clear and well documented intent of The People, wresting away from individuals the means of self determination and giving unto the government the power to control the masses.

Souter joined the bare majority opinion in Kelo v. City of New London. This case granted government the power to take away a person’s property and give it to another entity, in this case a corporation. The People in their Fifth Amendment said unto the government “nor shall private property be taken for public use.” Souter and his sidekicks went on at length about the disjointed and immaterial concept of “public purpose” and how an allegedly benign and benevolent government should have the power to redistribute real estate for the calculated social improvement of a region.

In other words take away your home and give it to a corporation that promises to pay more taxes than you do.

Last year Souter was on the losing side of a decision, arguing in the Heller case that the phrase “the right of The People to keep and bear arms shall not be infringed” meant that the right should be infringed. As with the Kelo case, arguments against clearly stated and individually reserved rights were suffocated in the type of language only lawyers can utter with straight faces.

Though Souter silently dissented in these cases, his vote counted and showed a predilection for power and not for the privileges and immunities of individuals (i.e., you). Obama could nominate Mussolini’s ghost to replace Souter and the vote tally on individual rights cases would unlikely be altered. The only open question is if outvoted Senate Republican’s will bother uttering the phrase “strict constitutionalist” during confirmation hearings or perceive it to be an utter waste of breath.

Perhaps they simply will avoid inhaling the aroma from the new steaming bowl of fetid judicial excrement.

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My gay friends here in San Francisco are in high dudgeons, and rightly so. To misuse a sanitized southern expression, they have been screwed in the pooper chute. Normally such activity would make them happy, but when 5,661,583 people bum poke you against your will … well, is can make a man as irritated as a hemorrhoid.

In California, we vote on everything. It is democracy run amok. Our biannual referenda fests allow us to swing the heavy hand of government to control our neighbors’ behavior and spend ourselves into fiscal extinction. This year a proposition passed that characteristically cast California into the role of a rights-restricted state (seriously, if this joint ever elected a strong leader it would classify as a fascist state).

In this case the election has created a constitutional crisis.

Proposition 8 (or as its homophobic detractors called it, Preparation H) passed and created an amendment to the California State Constitution that prohibits same sex marriage. Since constitutions are the express written will of the people and the highest law in the land, the clauses therein are immutable within the domain. In other words the California Supreme Court has no authority to overturn or rewrite any part of the state constitution in including Prop 8.

What makes this interesting from a constitutional law perspective are the seeming contradictions now with in the amended constitution. Like the national constitution, California’s document declares the people’s equal protection under the law:

A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws;

Some people contend this invalidates the new amendment, but sadly they are wrong. First, constitutions can be self contradictory. The people have the power to create whatever inanities they desire. A court not bent on projecting its biases upon the people would simply respond with we “Well, you didn’t give us the power to overrule you, so you’ll have to change the constitution again.”

California Supreme Court judges are not that honest or intelligent.

More germane is that generalized clauses are preempted by specific exception clauses. Take the constitutional passage above. The general right is that you cannot be deprived of life, liberty or property. The exception clause is that you can be deprived of life, liberty and property but only if due process of law is first exercised (or in the case of the Los Angeles police, at about the same moment). The government can execute you (life) but only if you violated a law for which the penalty is death and after you had your day in court.

The new amendment simply reads “Only marriage between a man and a woman is valid or recognized in California.” This is a specific exception to the general equal protection clause, and thus perfectly legal (as well as perfectly repulsive). An honest court that lives by its oath will uphold the constitutional prerogative and stupidity of 5,661,583 voters.

The only odds of making a wholesale change is in federal court. Preemption is the nature of law. As the specific exception clause preempts the general clause, so do laws in a higher jurisdiction. Pass a city law that conflicts with state law, state law trumps. Pass a state constitutional provision that conflicts with the national constitution and the national writ wins.

The problem for opponents of Prop-8 is that little in the national charter addresses this issue. The U.S. Constitution never mentions marriage, leaving only general protections. The legal definition of marriage has always been a state-level issue. Additionally, marriage is a mechanism of churches and statutes, and thus is not technically a right (except in the generic abstract of all rights belonging to the people). Thus the best defense in the U.S. Constitution is an almost identical “due process” clause, and in that the deprivation of “liberty” provides a flimsy rope for gays to grasp. Likewise the national constitution’s “equal protection of the laws” clause has suspect powers.

It will be tested, however. There is no doubt that the federal courts will at some time be asked to overrule the Proposition 8 clause of the California constitution. It will be filed in the Ninth Circuit (widely known as the Ninth Circus due to their completely inane and oft overturned rulings) and I suspect they will kill the amendment — it is their bias. However, their decision will be appealed to the U.S. Supreme Court. Odds are the Supremes will hear the case and decide in favor of federalism — the theory being that in the absence of a compelling national government interest, state laws (including state constitutions) are the appropriate jurisdiction for dispute. In short they will once again tell the Ninth Circus Court to mind its own business and stay out of state affairs.

In short, lesbians and gays are screwed.

More troublesome — mechanically speaking — is that a number of California same sex marriages are about to be invalidated. For less than six months California was a state where butt hole surfers and carpet chewers could wed. And wed they did. An estimated 18,000 of them put heteros to shame by their willingness to commit the same stupid mistakes that heteros have made all along.

Welcome to divorce court my friends. You’ll love custody battles the most.

The question is if these marriages are still valid. I’m unclear on the mechanics of constitutional amendments that invalidate what was once legal. In America’s prohibition insanity, the once legal practice of peddling booze was made illegal via a constitutional amendment. Once legal liquor licenses were instantly inoperable, though they may not have been formally invalidated. Yet we have in this nation the legal tradition of “grandfathering”, whereby property once held legally continues to be legal even after such products are banned. Silly states that banned machine guns still let their owners keep the ones they already had.

But a “marriage” is not property — it is merely a legal definition. What the law giveth, the law taketh away.

The question is will anyone challenge the standing marriages. I doubt it. The backlash against Proposition 8’s passage has already induced minor scale violence. Backers of the proposition do not want to create more mayhem before heading to court. And they may never see the value in kicking around people who have already walked the isle.

Lesbians and gays have only one solid alternative — passing yet another proposition that yet again redefines marriage, invalidating Proposition 8. There are several means for doing so, some with political implications. Same sex marriage proponents can do it via an initiative like their foes did. But they know the odds of passage are slim. If 2/3rds of the legislature can be convinced to do so, an amendment can be put before the people. The same problem applies. There is the constitutional convention route, but that is entirely too tricky for comprehension.

Again, gays and lesbians are screwed.

Long ago people wrote songs about California, a place seemingly of vast and open scenery, good vibrations and endless dreams. Now it is merely a place for self-inflicted suffering … and that’s before you figure in the high tax rate. Shame. I hear it was once a good place to live.

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