Just some friction in The Machine

Thursday, August 28, 2003


Tampa drops face surveillance. Unfortunately, it's not because of 4th Amendment issues, it's because it plain doesn't work. As the technology improves you can bet this will return.


Wednesday, August 27, 2003


Thank you Allen Hacker for responding to the question I asked yesterday. I appreciate the reference to Article 3 Section 1 of the California constitution incorporating the federal Constitution

The State of California is an inseparable part of the United States of America, and the United States Constitution is the supreme law of the land.
I do believe that a subordination clause like this would invite federal jurisdiction in 1st Amendment cases. Yet I still don't see how the Ten Commandments monument violates the 1st Amendment. The first amendment forbids establishment of religion, in my view what it forbids is establishment of religious government as had been done in England with the Anglican church. The placement of a monument does not establish any type of ecclesiastical government, however removal of the monument may well violate the prohibition on interference with the "free excercise thereof". Just as a statue can be an icon (religious) or a monument (historical), this carving could be religious or historical. In its current setting I interpret it as a historical monument. If you pick up the same piece of rock and put it inside of a catholic church, I'd interpret it as religious. Likewise, I view a statue of the goddess Venus holding the scales of justice in a court building as a historical monument paying tribute to the lexical contributions of greek and roman societies to our legal system, yet if the same statue were put into a catholic church I would find it to be an icon (and a violation of the 1st Commandment). Although Allen makes a point of taxpayer money being spent on the Alabama Supreme Court building, I believe that point is not material to the current case, as while the states may have subordination clauses that invite enforcement of federal crimes within the state, that does not mean that the federal courts have jurisdiction to adjudicate state laws. Since the decision of interest is of a federal court, it doesn't matter that the test for establishment in Alabama is defined by spending taxpayer money, it is only the federal constitution that should be interpretted, not the State constitution. It's a whole other issue if State of Alabama wishes to pursue Judge Moore for violations of the State constitution, but that is not what's happening here. So although I now accept the federal jurisdiction for Constitutional violations, I still don't see the violation. Where has a law been passed that establishes a religion? If this is religion, then lady justice has to go, as would all of the gargoyles and bas relief statues on all of our court and capitol buildings. I don't think we have to worry about the "In God we trust" on our money though, because it's all owned by a private corporation, not the government. ;-)

Tuesday, August 26, 2003


(picture links this paragraph) Just back from North Carolina where I visited my stepson who is currently stationed at Camp LeJeune. It was a great trip, if a little compact. And to introduce you to my biases before the next paragraph, this is the catholic church I attended on Sunday morning in Jacksonville, NC. Now down to business....

For what I think is the first time, I disagree with Allen Hacker on something. Regarding Judge Roy Moore and the current federal directive to remove the monument featuring the Ten Commandments, Allen talks about whether Judge Moore is violating the Alabama constitution, not whether or not he is violating the federal constitution. I'm certainly no expert on the Alabama constitution, but I don't see how it matters, the court decision was in the federal circuit, they don't rule on state constitution issues. For Allen's arguments to matter in the current situation the Moore decision would have to have been decided in an Alabama state court. Understanding that I am biased toward viewing the Ten Commandments as a religious symbol, I don't see it here. From my viewpoint, if this monument is establishment, then so is the copying of greek architecture into our court buildings, they must all be razed and replaced by blank facades that won't offend non-polytheists with reminders of the historical lineage of greek law and customs into common law and our current legal system. Basically, Allen has accepted as premise that the Ten Commandments are necessarily religious in nature and their mere presence in a public place creates a "place of worship" at public expense, which is prohibited by the Alabama constitution. I remind the reader that this has nothing to do with the current case under federal jurisdiction, it is Allen proscribing what he thinks ought to be the logical conclusion. Please don't take that last sentence as a condemnation of Allen's position, he may very well be correct in that his scenario would be a much more favorable finding than the current one. And as Allen well knows from our private e-mails, I do not see his argument as anger or enmity, and I don't believe he sees my Catholicism as blinding my logic, it is precisely my respect for his opinion that prompts me to write currently, as I hope he can help me clarify a dilemma in my own mind. Even as I accept that it may be possible for the State of Alabama courts to force Justice Moore to remove the monument for violation of the State Constitution, I cannot come up with justification for the 11th circuit finding federal jurisdiction for the case, nor can I find where they see "establishment", although I can see where they violate "free excercise" in the same first amendment. The problem I have is that in my mind, what makes the most sense is that the first amendment reads "Congress shall make no law.....", and so I wonder how a State employee, on State property (possibly) in violation of a State Constitution, can possibly be interpreted as violating a limitation put on the power of Congress. But here's my dilemma, following that logic, how do I justify claiming 1st Amendment violations if a State government were to ban books? OK, Mongo I need some guidance.


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