The Myth of Constitutional Constraints

A column penned by Ann Woolner has in a two words that set my teeth on edge. Those words are “constitutional constraints.” Speaking of being constrained by the constitution conjures up the image of the constitution as an actor; an actor that sets limits. But that’s not how the American judicial system has evolved. The only actors are the judges, and, as one famously said “the constitution is what the judges say it is.” For some judges (I don’t know how many but they appear in the news almost daily) the constitution is a weapon that allows they to impose their concepts of fairness and justice on the rest of us.

Need an example? A hundred years ago, it was illegal in most venues to commit homosexual acts. Today, the Supreme court has struck down laws against those acts and, taking a giant step, many judges have decreed to those same homosexuals can marry. Same constitution; different judges.

Attempting to ridicule concerns that the courts would allow the imposition of Sharia law in the US, Woolner uses the example of the courts enforcement of the ban of polygamy.

Besides, as it is, no religion can trump American law in U.S. courts when the two fundamentally conflict. The Supreme Court said so when it ruled that Mormons couldn’t violate a federal ban on polygamy.

In view of the court rulings on same-sex marriage, I have never understood how the courts can claim that laws against homosexual marriage are unconstitutional, but laws against polygamous marriage are constitutional. There is no specific language in the constitution that limits the partners in marriage to two.  

 Forget about the tortured justification for striking down bans on homosexual marriage. The simple reason behind all these rulings is the fact that many judges have friends and relatives who are homosexual and they have determined that if two men or women who are gay love each other they cannot be prevented by law from getting married because it abridges their freedom. So, why can’t three or more?  Simple, they don't know many Mormons and most Mormons are not agitated about polygamous marriage.  How's that for a constitutional principle? 

We are told that a “living constitution” must adjust to the evolving standards of the community and that judges are in a position to understand the evolution of these standards. But that is apparently not the case. If it were so, laws will be changed if the people approve and judicial fiat will be unnecessary. Yet when allowed to vote on the matter, a majority of Americans oppose homosexual marriage and I am certain that the same is true of polygamy.

Liberals like Ann Woolner like to use the excuse that the constitution protects us against radical changes in our laws or culture and smears those who voice those concerns as engaging in “irresponsible fear-mongering.” When it comes time to impose her version of law and justice on the American people by judicial fiat, she will, like Lucy in the Peanuts comic strip, jerk the constitutional ball away from us and we will land, like Charlie Brown, on our collective asses as she laughs and tells us what fools we were.

Best of the Web

Excerpts:

"Former Democratic presidential candidate Mike Gravel was caught on tape last week telling a crowd in Washington, D.C., that they should harass a federal prosecutor who helped bring criminal contempt charges against a Palestinian activist," Fox News reports.
...
Gravel: Find out where he lives. Find out where his office is. If you've got some chutzpah--which is a word that you don't hear often--if you've really got it, find out where he lives, find out where his kids go to school, find out where his office is; picket him all the time. Call him a racist in signs if you see him. Call him an injustice. Call him whatever you want to call him, but in his face all the time. They can't take the heat; deliver it to them. We have to stop laying down to these injustices.

Find out where Gravel lives, where his office is, if his wife works, where his kids live. Then get in their faces everywhere they turn. No?


On the International front:

"The International Red Cross said Wednesday that Colombia broke the Geneva Conventions by deliberately using its humanitarian emblem during the covert military mission that freed Ingrid Betancourt and other hostages," the Associated Press reports from Geneva:

Use of the Red Cross symbol in a military operation violates the first Geneva Convention because it could damage the relief group's neutrality in conflicts, endangering medical personnel on the battlefield who are using the red cross for protection.

Maybe we're dense, but it seems to us that rescuing civilian hostages from a terrorist group is a higher humanitarian priority than preventing unauthorized use of a trademark. The way the Red Cross interprets them, the Geneva Conventions seem almost quaint.

Reason #26:

Yesterday we noted that Slate's Timothy Noah believes it is racist to call Barack Obama "skinny," because any reference to a black man's physical characteristics is code for calling him black.

Is there anything we can say about Obama that is not racist?

Excitable Andy pontificates:

"Obama's fortnight was an objectively miraculous one."--Andrew Sullivan, The Atlantic Web site, Aug. 2

OK if you say so.

"Dead Man Awakens Before Autopsy, Shocks Doctors by Asking for Glass of Water"--headline, FoxNews.com, Aug. 6

Good thing it was before the autopsy.

• "Hospitals Infested With Rats, Fleas and Bed Bugs"--headline, Daily Telegraph (London), Aug. 6

The much heralded British public health system.

Sex and Eugene Volokh

The Volokh conspiracy is a blog with a focus on things legal. Eugene Volokh is a law professor at UCLA. And as cases involving sex are litigated, he and his cohorts comment on them, frequently citing the law and linking to the actual decisions handed down.

Eugene appears to be of a Libertarian bent and favors homosexual marriage. This is not too surprising since I believe, but can’t prove, that most academics do. To take a position otherwise would appear to be discriminatory and is certainly not in keeping with the evolution of our “living constitution.”

In this context, it is fascinating to see discussions of the controversy surrounding the Texas FLDS litigation. For those who have not been following this is a recent case in which Texas Child Protective Services (CPS) raided a ranch (Yearning for Zion Ranch) run by a polygamous group known as the Fundamentalist Church of Jesus Christ of Latter Day Saints. Over 400 children were taken from their mothers and farmed out to foster homes based on the theory that they were in imminent danger.

A lower court agreed, an appeals court disagreed and the Texas Supreme Court agreed with the appeals court and ordered the children back to their parents.

Here is the part that I find interesting. Modern Liberalism demands that we get our noses out of other people’s bedrooms. It demands that we approve of homosexual practices and that we give our approval to homosexual marriages. But it has a visceral, prudish reaction to certain other sexual practices, demanding that – for example – people who approve of the marriage of teen aged girls to much older men be prosecuted.

Go back in time, not more than a few hundred years, and the sexual habits and morals of the day were the exact opposite. Homosexual practices were banned while marriages were frequently arranged between young girls and much older men and no one thought anything of it.

Things have changed since then, of course. We have the automobile, jet plane, the computer and indoor plumbing for the masses. But human morality has not evolved with the same speed and in the same direction as technology. If the courts find that it is required of the constitution that John and Bill should be allowed to marry, why do those who believe this, not only from a moral perspective but from a legal one, stop short of Frank marrying Jill, Mary, Elsie and Sophie?

What is it about the number “2” that creates a constitutional block to the latter marriage arrangement? I ask this in all sincerity since there is no doubt that the laws regarding sexual couplings and marriages are in a state of flux.

I can understand that people, having achieved their solitary objective of mainstreaming their personal sexual preferences now wish to stop all development and not extend new “rights” to less favored groups. But I would think that as a discussion of law and philosophy, such parochial considerations would be put aside.

I invite Professor Volokh to consider an answer.

Court orders return of sect children to parents

Well, that was fast.

I would have thought that the law would wend its leisurely way for at least weeks if not months; that the children might see their parents again for their college graduations or weddings. But like a bolt of lighting the Texas Supremes ruled that the children from the Yearning For Zion Ranch have to be returned to their parents … now.

SAN ANTONIO - In a crushing blow to the state's massive seizure of children from a polygamist sect's ranch, the Texas Supreme Court ruled Thursday that child welfare officials overstepped their authority and the children should go back to their parents.
The high court affirmed a decision by an appellate court last week, saying Child Protective Services failed to show an immediate danger to the more than 400 children swept up from the Yearning For Zion Ranch nearly two months ago.
"On the record before us, removal of the children was not warranted," the justices said in their ruling issued in Austin.

The speed with which this case was decided may be an indication of how weak the case brought by the CPS was. It will be interesting to see if someone is made to pay for this fiasco or whether there will be the usual bureaucratic CYA and the CPS workers circle the wagons.

In a related development, the Texas Rangers may have found the person who perpetrated this outrage with a hoax phone call. The perp, who is under investigation for other hoax calls appears to be Rozita Swinton, 33, of Colorado Springs. She has made other phone calls pretending to be a teen aged girl being abused either by her father and her pastor.

COLORADO SPRINGS, Colo. - A woman suspected of making false abuse claims in Colorado used a telephone number that was later used to report alleged abuse at a polygamist retreat in Texas, according to an affidavit made public Wednesday.
…
Swinton was arrested April 16 and later released on a misdemeanor charge of false reporting in a February case in Colorado Springs with no known ties to the raid in west Texas.
She's accused of posing as a teenager named "Jennifer" and falsely claiming in a 911 call that her father had locked her in her basement for days, the arrest warrant affidavit released Wednesday said.
Swinton pleaded guilty to misdemeanor false reporting in a 2005 case out of Castle Rock, Colo.; a one-year sentence was deferred. She had claimed in phone calls to be a 16-year-old named Jessica who was suicidal after giving birth; there was no baby.
"The investigator ... was surprised at her age because she sounded like someone who was in her mid- to late teens even though she was 30," Castle Rock police Lt. Douglas Ernst said.…

The warrant also links Swinton to calls made throughout October from a "Dana Anderson." The caller claimed to be a young woman being abused by her pastor at Colorado Springs' New Life Church, and later as a 13-year-old student at Liberty High School who said she was being drugged and sexually abused by her father.

New Life Church is incidentally the church in which a deranged gunman killed one and wounded four before being killed himself. It appears that his church is the subject of quite a bit of hatred by militant atheists.

But back to Swinton, these kind of accusations can have a devastating effect on the person being accused, since the assumption is made that no one would fake this. Decades ago, this kind of thing sent day care workers to jail for years. This one almost led to the destruction of hundreds of families and their children.

If Swinton is the hoaxer, she deserves a long, long prison sentence.

Texas Polygamist Sect Case: Another Duke Lacrosse Rape Case?

Remember the Duke Lacrosse Rape case? You know, where a bunch of rich, white jocks gang rape a poor black girl? Except that it didn’t happen. The prosecutor was disbarred and Duke University and the city of Durham are being sued for millions.

Yeah, that one.

Well the “Texas Polygamist Case” seems to be heading in that direction. What set if off was a telephone complaint from someone claiming to be a pregnant abused 16 year-old teenage wife. Except that this person was never found and the call is suspected of being a hoax.

From the AP story:

SAN ANGELO, Texas (AP) — A Texas appeals court said Thursday that the state had no right to take more than 400 children from a polygamist sect's ranch, a ruling that could unravel one of the biggest child-custody cases in U.S. history.

The Third Court of Appeals in Austin ruled that the state offered "legally and factually insufficient" grounds for the "extreme" measure of removing all children from the ranch, from babies to teenagers.

The state never provided evidence that the children were in any immediate danger, the only grounds in Texas law for taking children from their parents without court approval, the appeals court said.

It also failed to show evidence that more than five of the teenage girls were being sexually abused, and never alleged any sexual or physical abuse against the other children, the court said.

In fact, the five pregnant teen age girls did not say they were sexually abused and in Texas, as in many other states, it is legal for teen-age girls to have babies. If child protective services were to remove the children from every family that had teen agers who were pregnant, a large part of many major cities would be devoid of children.

The court ruling is not very long and reveals the fact that the primary impetus behind the decision to remove the children was that the LDS sect was considered to have “weird” customs and beliefs.

As in the Duke Rape case, the facts presented via the press came from CPS, who had every reason to make this case as horrible as possible, with accusations of rampant polygamy, child abuse and rape of young girls by older men. None of these accusations has been substantiated. The San Angelo Standard Times has been covering the story and gives more details.

Alan Bock's Blog has some critical things to say about CPS and the media in this case.

Another problem, hinted at in stories when the raid was conducted in April, is that the telephoned tips about abuse and young girls forced into marriage may not have come from inside the compound but from a more-or-less professional polygamy-buster who claimed to be a young girl. At any rate, the girl who was supposedly the informant has never been identified or found.

What's fascinating about all this is that most of the news media have been cheering on and gloating about the raids and generally pining for more. All it takes to arouse the seizure-lust of most of the media, apparently, is allegations of child abuse along with the fact that members of the group are just plain weird.

For evidence of how the media have seized on this and their depiction of the case, see the BBC's take, the lurid reporting of the LA Times, and Time - which celebrates the aberrant behavior rich girls who don’t wear panties wrote about:

women seemingly dressed for Little House on the Prairie, whose modest appearance was jarring with their sexually aberrant lifestyle.

No one in the MSM should ever have the right to use the term "sexually aberrant lifestyle" again.

It remains to be seen what the outcome of a full and fair investigation will be. Polygamy is against the law in the US although that barrier to marriage should fall soon now that the definition of marriage has become malleable. The rationale against marrying multiple spouses is no more rational that the ban against homosexual marriage ... I'm sure the men in black robes that rule us will agree.