Health care/Life/Religion

Give credit where it belongs

Posted on by Kenneth Ballard / 0 Comment

Being on Facebook, occasionally you see people post things that catch your attention, such as this little number:

Here’s an update on my wonderful son-in-law, GOD has been working his healing hands on him!!!! Everyday since Sunday 3-18 [redacted] has been showing improvement.
This has taken ALL of us to our knees. GOD is good and we are keeping our eyes on him, not what is but, what is to come and that is the “Miricale of GODS Healing in [redacted].”thank-you for the prayers! Love [redacted]

This showed up on my news feed courtesy of one of my other friends making a comment. When I first saw it, I swear my heart stopped for a moment. And no my heart didn’t stop because I was suddenly taken by the reverence to God being shown here. No my heart stopped because of what is lacking from this anecdote.

When you are receiving care in a hospital, there is a class of elite people who will see to your every need while you are there. They will ensure you are as comfortable as possible, and are on call whenever you need them.

They are the nurses.

With the above anecdote, I can guarantee you that nurses have been watching over the patient around the clock with the attending physician checking in periodically for new orders, discussing the vitals and the like. And yet this person feels the need to show great reverence to God without once thanking the people who I can also guarantee are truly responsible for the progress the patient is showing.

When I see anecdotes like the one reproduced herein, I am glad I’m an atheist because I will always make sure that credit goes where it is properly due. Revering God without thanking the nursing staff is an insult to the nursing staff!

Thank the nurses. Thank the attending physicians. They are truly responsible for the care you receive in the hospital. Especially the nurses who have to deal with people at their worst.

If you’re reading this and you are a nurse at a hospital, I want you to know how much I appreciate the service you provide. Nurses provided excellent care to my wife when she was in the hospital in June, and the doctors who performed and the nurses who assisted in her surgery are the reason the surgery went well, and the nurses post-op are the reason her recovery went smoothly.

The nurses deserve the thanks. Not God.

Update: the person mentioned in the quote above passed away on March 30, 2012, a week after this blog post was published.

Politics

Rick Santorum is not electable

Posted on by Kenneth Ballard / 0 Comment

Rick Santorum seems to be the top contender to Mitt Romney in the current race for the Republican nomination. Gingrich is, thankfully, without a prayer in this race, and I certainly wish Ron Paul was doing quite better. But of the two front-runners, only Romney actually has a chance of beating Obama in November.

The reason is quite simple. Mitt Romney is more moderate, by far, than Rick Santorum. Santorum is way, way too far to the right on his political leanings. And as much as Santorum would like to make this campaign more about the current fiscal state of the nation and the coming debt crisis, Obama’s campaign and those supporting it will ensure Santorum’s message is clouded by his far-right social conservatism.

So why not Gingrich? Frankly he has way, way too many skeletons in his closet. As an example, how can Gingrich say he supports traditional marriage when he is currently on his third marriage and has had affairs in the past? And that’s only one example.

Aside from Romney, the only person currently still in the race that is practically untouchable is also someone the Republicans want to shun just as much as the Democrats: Ron Paul. For a long time, people on both sides tried to find something, anything on which they could attack him, and all they could get is some newsletters that were published two decades ago. That’s it. It’s why the media and conservatives jumped on it when they surfaced again.

Romney, Santorum and Gingrich, however, will provide much easier prey for Obama’s campaign.

Now Ron Paul is just as unelectable as Santorum, in my opinion, but definitely not for the same reasons. You see, Ron Paul isn’t afraid to tell the truth on a matter, something that, frankly, scares the living shit out of people. People don’t want to hear what he has to say, even though he is the only candidate who predicted our coming debt crisis decades ago and predicted the recession after the dotcom bubble exploded.

Ideologically, Ron Paul is untouchable. He can keep the argument focused on the economy.

So basically we’re left with Romney and Santorum. Of the two, Romney will withstand attacks by Obama better than Santorum because Romney doesn’t have much that Obama can attack. Romney’s been a bit of a flip-flopper, but what politician hasn’t? (Umm… Ron Paul.) Romney is a Mormon, something with which ideological Republicans might be uncomfortable, and that might be something Obama can attack as well, along with "RomneyCare".

But Santorum and his far-right, theocratic-style beliefs will be a non-stop treat to Obama and his supporters.

And if The Daily Beast’s John Avlon is correct, a Santorum nomination will end up with a loud thud as millions of independents flee to support Obama or a third party candidate and the GOP is defined by their theocratic nominee.

But as Avlon points out, if Romney is nominated and loses to Obama, they may blame it on the fact that Romney is more moderate and may instead drive the GOP further to the right, which will be their undoing. So basically the only thing right now that can save the GOP, aside from a Ron Paul presidency, is a Mitt Romney presidency. All other outcomes don’t appear to end well for the Republican Party as we currently know it.

Perhaps 2012 will be the wake-up call the Republican Party and hard-right Republicans desperately need.

Constitution

Cry, the Beloved Constitution: A rebuttal

Posted on by Kenneth Ballard / 0 Comment

When reading of the New York Times discussing the Constitution of the United States, I often expect that they will, in many ways, get it wrong. And thankfully a recent op-ed authored by J. Harvie Wilkinson, III, proved to be no disappointment.

What is mildly disappointing, however, is that Wilkinson is a judge. Not just any judge, but a Federal judge sitting on the bench of the United States Court of Appeals for the Fourth Circuit. He was appointed to the Federal bench in 1984 by President Reagan and confirmed by a divided Senate with a vote of 58-39.

He is also the author of the book Cosmic Constitutional Theory: Why Americans are Losing Their Inalienable Right to Self-Governance. I have not read the book and cannot recommend for or against it. I am not familiar with the Judge and his political leanings, if any, so my entire focus here will be just on the text of the article to which I am responding. One thing that is apparent from this piece is that the Judge is an advocate of judicial restraint.

The article in question is called “Cry, the Beloved Constitution” and was published March 12, 2012, on page A21 of the New York Times.

Judge Wilkinson does correctly state at the beginning that the interpretations and exercise of the Constitution by both liberals and conservatives – i.e. Democrats and Republicans, respectively – is certainly not within its language. Republicans have their sights most set on the Courts while Democrats seek to install new “rights” within the United States Code that have no basis in our Constitution, unless you take a very, very, very broad interpretation of the Ninth Amendment. Judge Wilkinson’s observation is certainly accurate and worth noting:

The result is a national jurisprudence whetted by political appetite, with our democratic values as the victims.

This was especially true with the jurisprudential landscape laid out in the 1930s with the Supreme Court’s over-expansive interpretations of the Commerce Clause and their effective rubber-stamping of FDR’s legislation.

He begins his article by responding to Republicans:

Conservatives increasingly bemoan Congress’s power to regulate interstate commerce, as illustrated by the debate over the Affordable Care Act’s requirement that individuals buy health insurance. They argue that Congress can only regulate activity, not inactivity, and so when it gets involved in a decision by a consumer to not purchase health care, it is going far beyond its reach.

If only it were that simple.

I agree, if only it were that simple. However this reduction of the Republicans’ view of the Commerce Clause is woefully incomplete. Republicans are correct that the Constitution does not grant the Federal government the ability to mandate anything, but instead provides the Federal government only regulatory power. Just as you cannot regulate the flow of water in a bucket, but you can a river or garden hose, the Federal government cannot regulate someone’s nonparticipation in a market segment, but its power to regulate only comes into play when that person chooses to participate in a market segment.

Now all of economics derives from two words: man acts. While inaction is the opposite of action, the decision to not act is an action. However that decision exists purely within the realm of a person’s mind and intentions and is outside the realm and purview of government regulation.

While you can put a stick into a bucket of standing water and stir it to get it moving, thus providing some regulation to the water’s movement, the Federal government is not granted the power to stir our economy with its legislative pen, only regulate those parts of our economy already moving.

A vibrant economic order requires some political predictability, and the prospect of judges’ striking down commercial regulation on ill-defined and subjective bases is a prescription for economic chaos that the framers, in a simpler time, had the good sense to head off.

Let’s take this in its two parts, starting with the first: “a vibrant economic order requires some political predictability”. This is very abundantly true. Any person who is familiar with economics can see the truth in this statement without having to exert much thought: fear of future government regulation can have an impact on business decisions today, including the decision to start a business.

But the second part isn’t accurate. It isn’t the prospect of judges striking down regulations that is a prescription for economic chaos, it is the prospect of Congress or one of the many Federal agencies enacting new regulations and restrictions that is such a prescription.

When some teenagers nearly die after drinking a caffeinated energy drink and a Senator talks about outright banning the product from store shelves nationwide, people become nervous about what will be banned next, and this influences decisions by the consumers who purchase products and the businesses that make existing products and devise future products. If there’s the prospect that years of product research and development, including market research, will be wasted and unrecoverable with the stroke of the legislative pen, businesses may instead decide against introducing a new product, and we are all worse off when that occurs.

[I]f courts read the Constitution in such a way that it enables them to make Congress ineffectual, and instead to promote 50 state regulatory regimes in an era of rapidly mounting global challenges, the risks should escape no one. Making our charter more parochial while other nations flex their economic muscle seems like poor timing.

It is impossible for a Court to read the Constitution in a way to make Congress ineffectual. The Constitution lays out specific, enumerated powers for Congress and Congress is not to do anything that goes beyond those powers. Again Congress is granted regulatory power, yet most of what Congress has done, including the aforementioned Patient Protection and Affordable Care Act of 2010, is unconstitutional.

Next the Judge turns to the Democrats.

[Liberals] have forsaken the textual and historical foundations of that document in favor of judicially decreed rights of autonomy. It is one thing to value those rights our cherished Bill of Rights sets forth. But to create rights from whole cloth is to turn one’s back on law.

It is difficult to escape the observation that the Ninth Amendment is the most ignored Amendment in the entirety of the Constitution: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” This is especially true on the part of Republicans, as the Ninth Amendment is quite inconvenient with regard to advancing their agenda, but it is also true of Democrats as well in many ways.

Obviously where the government is granted power, the Ninth Amendment must cede to that power. For example, any perceived or actual right of the people to be free from government regulation with regard to interstate commerce must cede to the power of Congress to regulate interstate commerce.

But where the Federal government exercises powers in excess of those granted in the Constitution, the Ninth Amendment is intended to be the language that gives the people the power to say the government has gone too far. Imagine in your mind that the Federal government is the Balrog of Moria and the Ninth Amendment is Gandalf standing on that stone bridge shouting “You shall not pass!” Similar concept, as the government always exercises its authority in violation of the rights of the people. It doesn’t matter what the government does, as it will always violate the rights of the people in the process. But the Constitution is the way the people have, through the ratifying conventions, ceded certain rights to the Federal government.

The Due Process Clause of the Fourteenth Amendment provides similar power to the people with regard to the States.

So while the Ninth Amendment seems to be the most ignored Amendment with regard to debating the Constitution, it is the most cited Amendment when lawsuits against the Federal and State governments are filed in Court. When the people cite the Ninth Amendment against the government, it is then the responsibility of the government to cede the stolen power to the people, or satisfactorily justify it from elsewhere in the Constitution.

[C]reating constitutional rights without foundation frays the community fabric and, with it, the very notion that the majority can enact into law some expression of shared values that make ours a society whose whole is more than the sum of its parts.

Yes and no. It depends in whole on what “rights” are being created out of whole cloth. If we’re talking about what I’ve previously termed “rights of the silver platter” (here), then certainly this has that ability. After all if you attempt to assert the people have a constitutional right to be lazy (they don’t, by the way), then this can and will undermine much of our society.

But society is nothing without the individual: autonomous individuals capable of acting on our own wills and desires. As such when the majority seek to restrict the ability of a person to act on their own wills and desires, that restriction must very much be justified, and saying “because we’re the majority and majority rules” doesn’t cut it.

Again where the government acts, it is always in violation of the rights of the people. As such the actions of the government must be such that the violation of those rights is as minimal as possible. So when the government requires people to purchase a license from the government to get married, the people can legitimately demand that such a requirement not be exercised in such a way as to restrict the ability of two consenting, contractually competent adults from marrying.

But when the government seeks to restrict the actions of an individual where the effect of those actions goes no further than that individual and has no impact upon another person, then those restrictions warrant extra scrutiny.

Society is nothing without the individual, and individuals are nothing without their individual rights.

I’ll close with the Judge Wilkinson’s closing paragraph, which satisfactorily sums up everything:

All factions owe their fellow citizens the hope and the prospect of democratic change, not the message that their views have been constitutionally condemned and their opponents’ views carved in the stone of our founding charter. Restraint has much to commend it as a judicial value, not least of which is that it extends the hand of tolerance and respect to those whose views we may not share, but whose citizenship we do share and whose love of family, community and country burns no less brightly than our own.

Casey Anthony/Trial by jury

The jury

Posted on by Kenneth Ballard / 0 Comment

It’s not often that I respond to a comment with a separate blog post. I’ve done it only a few times here. What prompts it is when I think that merely a comment in reply would be insufficient. So here I find myself revisiting Casey Anthony once again to respond to this comment on my last article on the case:

You seem to have developed the idea in your mind that people should listen to a “jury” about the evidence when, by their own admission, they did not even look at the evidence when they deliberated… How can anyone consider someone an authority on something who didn’t even look at that something? You are on very slippery logical ground when you do that.

In the aftermath of the Casey Anthony trial, there was without doubt a lot of people angry at the jury. Just read around on most any blog about the case and you’ll find comments questioning the intelligence of the jury and accusing them of ignoring the obvious, among comments and words that seem to only go downhill from there. And comments attacking the idea of a jury – not the jury in the Casey Anthony trial, but the entire jury system we enjoy in criminal courts today – were also pushed around by people, including Senator Mitch McConnell when he used the Casey Anthony trial as an example of why terrorists should not be tried in civilian courts:

We just found with the Caylee Anthony case how difficult it is to get a conviction in a U.S. court. I don’t think a foreigner is entitled to all the protection in the Bill of Rights. They should not be in U.S. courts and before military commissions.1Fox Nation. (2011, July 10). “Holder Wants to Try Terrorists in the Same Civilian Courts That Let Casey Anthony Free“.

Senator McConnell appears to be saying with this comment that juries cannot be trusted and that they must take a more reliable route to ensuring alleged terrorists are locked up for good. Am I the only one unsettled by the thought of an elected official denigrating one of the fundamental safeguards of our liberties? Indeed the above-quoted commenter gives the impression through the wording of his comment – “listen to a ‘jury'” – that juries cannot be trusted, and there is something very unsettling about that idea.

* * * * *

I have never said that a jury is an authority with regard to the evidence. All one has to do is look at how often convictions are overturned as a result of new evidence or wrongfully obtained evidence to see that juries can be wrong with their verdict. In fact I brought up such an example in my previous article on the Casey Anthony trial: the conviction of Master Sergeant Timothy Hennis that was vacated by an appellate court in favor of a new trial that resulted in an acquittal. Juries can be wrong. I do not deny this, nor does anyone at all familiar with the jury system. It is a well-known issue with the jury system.

And yet the jury system is what we still have, as imperfect as it is and can be, thanks to that pesky document called the Constitution of the United States, which provides for a right to a trial by jury in the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law…

This is a restatement of a similar requirement provided in Article III, Section 2:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed

Clearly the Drafters of the Constitution felt that even an imperfect jury was still sacred to the criminal trial process. Why is this? Why is it so better than the alternatives? Because the alternative is to have a full government tribunal for trying criminals. Or we could turn everything over to the court of public opinion… yikes! Or just let Nancy Grace decide.

Even an imperfect jury is still better than either of those alternatives, and I think even a government tribunal is far superior to the court of public opinion and Nancy Grace’s opinion, combined.

* * * * *

Juries are made up of people. People are not infallible. Thus juries, and by extension the jury system, is imperfect. The jury is, however, presumed incorrupt and unbiased.

A jury may well respond erroneously to a question of fact because their judgment has been clouded by emotion. The fact this occurs has worked quite well to the advantage of prosecutors and the disadvantage of many people. It is a known and oft-cited problem with juries. But then, that’s also why there’s an appeals process.

But the greater difficulty with regard to a jury verdict is that all of the evidence and testimony that is presented during a trial is reduced down to one simple phrase that is either “Guilty” or “Not guilty”2And possibly other options that may be available based on what the applicable laws allow. We cannot know if a verdict of “guilty” was returned by a jury who made that decision purely on emotion, the evidence, or some combination therein, regardless of what the individual jurors say after the fact.

If a jury acquits a defendant, we cannot really know why, but the why is irrelevant, as an acquittal by a jury cannot be vacated or overturned. Instead we’re all left with what is really the only conclusion implied by the verdict: the prosecution did not sufficiently prove their case.

* * * * *

Going back to the comment above, I don’t believe we “should” listen to the jury about the evidence. I believe we must listen to the jury. But I don’t believe any jury is an “authority” with regard to the evidence presented to them. Some people will not understand certain concepts regardless of how well you explain it. So why, then, must we listen to the jury?

It is quite simple: if we always ignore a jury when they return a verdict we don’t like, that can lead us to undermine the jury system and lose faith in the jury system. And if we start losing faith in the jury system, then we can be more easily convinced to give up our right to a jury trial. And if that were to occur, we lose one of the most important safeguards of our liberties.

In other words, we must listen to the jury to ensure we still have the jury to which to listen.

To be sure there will always be controversial jury verdicts, verdicts that will generate large amounts of public outrage. Juries will convict the innocent and acquit the guilty. It is a well-known risk.

But while a jury will always be fallible and imperfect, there is no alternative to which we should or can trust our liberties as history has shown that the jury is the best way to protect our liberties with regard to accusations by the government. As such we should avoid denigrating the entire jury system simply because one jury returns a verdict with which there might be public disagreement.

References[+]

Religion

Yes, it is also freedom FROM religion

Posted on by Kenneth Ballard / 0 Comment

One phrase that is quite common in the United States is simply this: “It’s freedom OF religion, not freedom FROM religion”. This is the typical sentiment whenever atheists try to assert the position of the Constitution with regard to government entanglement in religion.

Here’s a sentiment of mine: the Constitution doesn’t talk about establishing a religion, but the religious establishment.

Moving on…

Typically those who tout the “freedom OF religion” sentiment try to justify using the arm of the State to put on display things in line with a particular religious belief or set of beliefs. ‘Tis rather troubling how people feel the need to use the government as a vehicle for spreading their religion rather than doing it with their own expense of time and energy. And this includes the public schools.

I’ve already written in depth about the First Amendment and its restrictions regarding government and religion in great detail (here and here), so I invite you to give them a read. They are long, so consider yourself forewarned.

But let’s look at the both ideas – freedom of religion and freedom from religion – by looking at a complementary and related natural right: free speech.

It has often been said that the freedom of speech has several facets. And the right involves actually four rights: the right to express, right to withhold expressing, the right to seek out others’ expressions, and the right to avoid certain kinds of expressions. Let’s briefly discuss each of these before discussing how they relate to religion.

First, it’s obvious that you have the right to express your opinions, so long as in so doing that expression does not cause harm to another or foreseeably lead to harm to someone. There is a caveat: if you say something that harms another’s reputation, what you have said or published had better be demonstrably true, and you’d better be ready to defend it.

But then you’ve also got the right to seek out other opinions, but doing so cannot be compelled of you except in certain, limited but justifiable circumstances. Along with this is the right to avoid certain kinds of expression. This doesn’t mean you have the right to tell someone else they cannot express something. This doesn’t mean you can censor someone else. It means only that if you start to experience a kind of expression to which you do not want to be exposed, you have the right to escape that expression, to remove yourself from that expression’s audience.

This is why the notion of the captive audience holds so much weight in our system of law. A person is part of a captive audience when they are a member of that audience through compulsion. Students in a public elementary or secondary school are the classic example. When someone is in a captive audience, extra consideration is necessary with regard to the kind of expression to which that person is exposed, as they are not their of their own volition.

So how does this apply to religion? It fits quite well.

First you have the right to make various expressions in line with your religious beliefs, and you also have a right to withhold such expressions. And I have the right to seek out what you or others holding similar beliefs might have to say, and I have a right to avoid or escape said expressions if I don’t wish to experience them. For example if a church rents a billboard along my route of travel to work, I don’t have to continue following that route knowing the billboard is there. I can take a different route that avoids that billboard if I so desire. And I can plan a route throughout a city that avoids all churches if I desire (and have the extra money to spend on gas).

This is where atheists say that you cannot have freedom of religion without also having freedom from religion. For there to be true religious freedom, I must have the right and ability to escape any expressions related to your religious beliefs, and you must have the right and ability to escape any expressions of my beliefs.

But when the government speaks through its various acts, decisions and legislation, we are its captive audience. This is why the Constitution of the United States and the constitutions of the several States restrict how a government may speak, and specifically restricts government speech with regard to religion.

So when a display of the Ten Commandments is authorized on a courthouse, or a prayer banner is displayed in a public high school, the government is engaging in religious expression. And when the government engages in religious expression, it is no longer acting in the best interest of all individuals subject to that government’s jurisdiction.

This is why religious expression by a government is unconstitutional. We are all part of a captive audience with regard to the government. And when the government speaks, everyone is affected.

The freedom of religion includes the freedom from religion. One cannot have the right to express one’s own religious beliefs without having the complementary right to escape the religious expressions of others. Your right to express Christianity is dependent upon your right to escape the expressions of Islam and Judaism, and vice versa. This also means your right to express Christianity is dependent upon your right to escape any religious expression of the government. And the only way to escape religious expression by the government is by prohibiting religious expression by the government.

Make sense?

Debt

Resetting the clock on old debts

Posted on by Kenneth Ballard / 0 Comment

This time ABC News correspondent Elisabeth Leamy attempts to tackle the issue of old debts and a concept called “debt re-aging”. Is she spot on or should she have done more research?

Article: “Debt Re-aging Dangers: Use Caution When Contacted About Old Past-Due Bills”

First, what is “debt re-aging”? The “re-aging” part of the name is with regard to the statute of limitations, but I’m going to have to go into a little more legalese on this one, so please bear with me.

There are two kinds of injuries that are recognized by law: civil and criminal injuries. Now I’m not referring to someone physically injuring you. You see, with a credit card, you agree to pay off any balance or at least adhere to a minimum payment. Fail to do that, and the contract you signed provides for an immediate remedy: late fees, raising your interest rate, and so on.

When you fail to adhere to the terms of a contract, this creates an injury under the law. Civil injuries or civil wrongs are called “torts”. Their criminal counterparts are “crimes”. Are there crimes and torts that overlap? Yes, but that is beyond the scope of this article. Anyway in failing to adhere to the terms of a contract, the injury or tort is called “breach of contract”. The contract for a credit card typically stipulates immediate remedies of that injury.

Now what keeps credit card companies from just suing people who make slight violations to their contract? Well, in short, the law is what prevents it. First the parties to a contract do have an obligation to attempt to remedy a civil injury outside court. It is only when those attempts fail that the injured party may seek redress through the Court by filing a lawsuit.

But the law doesn’t allow credit card companies to do that until after they have “charged off” the account. This cannot occur until the account is at least 180 days past due.

Now every state has a set of statutes that specify a limit on how long a person has from the day of the onset of the injury to seek remedy through the Court. These laws are called statutes of limitations. In the case of credit card companies, the clock starts the day after the first due date at which you failed to pay. Making payments in the interim only resets the clock. This is what is known as “re-aging” the debt. Any payment you make on a debt resets the clock.

How long that clock lasts depends on the State in which you reside.

So what if a debt collector calls about a debt that is possibly beyond the statute of limitations? Here is where the advice of Elisabeth Leamy’s article goes south:

If a collector doesn’t tell you that a particular debt is time-barred — but you think that it might be — ask the collector if the debt is beyond the statute of limitations. If the collector answers your question, the law requires that his answer be truthful. Some collectors may decline to answer, however.

First, I want you to remember this simple rule: anything you say to a debt collector, in writing or over the phone, can and will be used against you in a Court of Law if the debt were to result in a lawsuit. This sounds like the Miranda rule, and it applies perfectly well to debt collections.

Never talk to a debt collector over the phone if you suspect the debt they are attempting to collect may be beyond the time limit. If you do, anything you say may be interpreted as acknowledging the debt, in which case you have just given them full legal power to collect by resetting the clock. So repeat after me: never talk to a debt collector over the phone if you suspect the debt they are attempting to collect may be beyond the statutory time limit. While it might sound smart to ask if the debt is beyond the statute of limitations – and Elisabeth is right in that the debt collector must answer truthfully – the debt collector may respond by saying that they do not know, which is a perfectly legitimate and legally permissible response because the person to whom you are speaking may not know.

But one thing to bear in mind is that many collections agents are skilled over the phone. They know how to take and keep control of a conversation, and they will say anything (legally permissible or not) to keep that control and corner you. During a conversation with a debt collector, you may reset the clock on the debt and not know it. Don’t give them that chance by avoiding the phone call at all.

When the debt collector calls, say this simple phrase and hang up: “Put the details in writing and send it to me in the mail.”

From the first phone call, the debt collector has 5 days to put the information about the debt in writing and mail it to you. If they do not do this, they cannot collect on the debt. From the day you receive that information, you have 30 days to exercise a right known as “debt validation”. I have written on this previously. In the debt validation letter, ask them to provide information on when the account went “past due”.

Now do you have an obligation to pay a debt that is beyond the statute of limitations? Morally, I would say yes, as you do owe the debt. Legally, however, you do not, so long as you don’t inadvertently reset the clock on it. And you avoid inadvertently resetting the clock by – say it with me – not talking to the debt collector on the phone.

But what did Elisabeth have to say? She says you have 3 options:

  • Pay nothing on the debt
  • Make a partial payment on the debt
  • Pay off the debt

Well those options are no-brainers, but let’s explore them.

Although the collector may not sue you to collect the debt, you still owe it. The collector can continue to contact you to try to collect, unless you send a letter to the collector demanding that communication stop. Not paying a debt may make it harder, or more expensive, to get credit, insurance, or other services because not paying may lower your credit rating.

Let’s take this last phrase first: not paying the statutorily-expired debt may negatively affect your credit. This is true only if you live in a State with a statute of limitations less than 7 years. After 7 years, this debt will not be on your credit report and thus will not affect your credit score or ability to obtain credit in the future.

But you can forego paying on the debt if you desire, basking in your legal immunity in the process. Just don’t move to a State with a longer statute of limitations or the debt collector may decide to try collecting again (assuming they’re not otherwise-legally barred from doing so).

In some states, if you pay any amount on a time-barred debt or even promise to pay, the debt is ‘revived.’ This means the clock resets and a new statute of limitations period begins. It also often means the collector can sue you to collect the full amount of the debt, which may include additional interest and fees.

All I can say about this paragraph is that Elisabeth is spot-on. And I’d say it’s in most States where making even a partial payment will reset the clock. Do not send a debt collector anything until the debt has been validated and be careful that you do not make any kind of statement that can be interpreted as acknowledging the debt as such a statement may also reset the clock.

Even though the collector may not be able to sue you, you may decide to pay off the debt. Some collectors may be willing to accept less than the amount you owe to settle the debt, either in one large payment or a series of small ones. Make sure you get a signed form or letter from the collector before you make any payment.

This is just common sense. You can certainly pay off any debt you owe and release yourself of any obligation to it, regardless of whether that obligation is legally enforceable. However if you are going to acknowledge the debt, thus resetting the clock, any negotiation should take place in writing. If you do negotiate over the phone, take careful notes and say you want to acknowledge the terms in writing before sending any kind of payment.

So while some of the advice Elisabeth gives in her article is flawed, the information she provides is pretty spot-on.

Double jeopardy/Dual-sovereignty doctrine/Due process

Revisiting Casey Anthony, because some just don’t give up

Posted on by Kenneth Ballard / 8 Comments

The search terms keep coming in. People just will not let go of the Casey Anthony trial. There’s even a website called OverturnTheVerdict.com, which allows you to sign a petition regarding Caylee Anthony:

We the undersigned demand justice in the murder of little Caylee Anthony.

It is our belief that Casey Anthony should be found guilty of homicide in a US Federal Court. Under the Dual Sovereignty Doctrine, we believe that a Federal homicide case can be pursued against Casey Anthony.

We hereby demand that Federal Prosecutors pursue a homicide case against Casey Anthony.

In addition, we demand the the FBI release all case information to the US Attorney’s Office at the Middle District of Florida. so they may determine if they have a viable homicide case against Casey Anthony.

And there are sites with a pre-formatted letter to send off to the Federal Bureau of Investigation (why?) and the United States Attorney General’s Office calling for a Federal prosecution against Casey Anthony, also citing the dual sovereignty doctrine. Thankfully prosecuting authorities, at all levels, don’t take a case simply because the people want them to take the case. There’s a bit more going on behind that decision.

And at least they’ve dropped the idea of getting the “Not guilty” verdict overturned – probably after finally being convinced that such a move is impossible. Instead they’re citing something new: the dual sovereignty doctrine. Some people just don’t give up…

* * *

Dual sovereignty is not a novel concept. Every person within the jurisdiction of any State is simultaneously subject to the jurisdiction of the laws of that State and the laws of the United States of America – i.e. State code and United States Code. An exception are the several Indian tribes. While Federal jurisdiction supersedes State jurisdiction, where the Federal government has jurisdiction at all via their enumerated powers, often it is State jurisdiction that is exercised first, and almost always exclusively.

If there is an overlap, a case where the Federal government has exclusive and shared jurisdiction, the Federal government will often exercise only its exclusive jurisdiction. Two cases where this occurred were the prosecutions of Timothy McVeigh and Terry Nichols, convicted conspirators in the Oklahoma City bombing.

Now with the case of Casey Anthony, the two laws in question that apply are 18 USC § 1111, the Federal definition of murder, and 782.04 [f.s], the Florida definition of murder.

So why doesn’t the United States Attorney take jurisdiction with every murder that occurs? In short, they don’t have any claim to jurisdiction over most murders as most murders don’t fall under the exercise of Congress’s enumerated powers. As such the Federal government will typically only prosecute murders for which the States do not have any claim of jurisdiction, such as those committed against Federal officers and employees.

For example, with the Oklahoma City bombing, both Oklahoma and the United States had jurisdiction claims: the United States since it occurred on Federal property with Federal employees among those killed, and Oklahoma since non-Federal employees were also killed.

* * *

There is something quite disheartening and disturbing in the many petitions calling on the Federal government to take up this prosecution. And I feel it is only part of a more disturbing trend in the US. I’ve talked before about the presumption of innocence and the extreme lack of it in the United States. People are not willing to let a case be just between the accused and God if the person is found ‘Not Guilty’ by a jury. They are so desperate to see vengeance carried out in this life, to take every legal avenue possible – the evidence be damned – and, possibly, some not-so-legal avenues if the situation seemed to call for it.

The fact Casey Anthony is in hiding following what authorities called numerous, credible threats to her life is certainly evidence of this.

Wanting to see justice for Caylee is one thing. And who doesn’t want that? Yet it seems that when there is a case involving a child, people completely throw rationality out the window and let their emotions take control.

This sentence in the above-quoted petition is key: “It is our belief that Casey Anthony should be found guilty of homicide in a US Federal Court.” Let’s just think about this for a minute. The people who sign this petition (and one of the many others like it on the Internet) are calling for Casey Anthony to be convicted. Not just for her to be tried, but convicted.

And what would happen if a Federal trial were to commence and Anthony again acquitted. The possibility is certainly there, especially given the acquittal she’s already had in State court. How would those wanting her to be prosecuted by the Federal government respond if such a prosecution were to result in another acquittal?

The people who sign petitions like this one are pretty much demanding a second trial for Casey Anthony at the Federal level and demanding she be convicted on the charges. This is a comment that came into this blog recently regarding dual sovereignty:

The Federal Government can charge her and try her.  Hopefully they will, and you could count on a guilty verdict if this were to happen.

Actually they can’t, but let’s explore this.

* * *

In 1986, US Army Master Sergeant Timothy Hennis was tried and convicted and sentenced to death in 1986 in the State of North Carolina for the murders of Kathryn Eastburn and her two daughters Kara and Erin. He appealed his conviction and it was vacated and a second trial in 1989 resulted in an acquittal. After the acquittal, he continued serving in the Army, which left him open to military jurisdiction under the dual sovereignty doctrine.

Eventually cold case detectives managed to gather additional evidence against him. The earlier trials at the State level relied almost entirely on eyewitness testimony. Hennis left the Army in 2004, but the Army recalled him to active duty in 2006 for the purpose of placing him under Army court martial where he was ultimately convicted in April 2010 and sentenced again to death. He has appealed his conviction, and as he was sentenced to death, there is an automatic review by a military commission.

Why have I provided this anecdote?

The Federal government will rarely take up prosecution of a case where prosecution in a State court resulted in an acquittal unless there is new evidence, provided they have the requisite jurisdiction. Do you think the military would have court-martialed MSG Hennis if they had not obtained new evidence against him? Okay with him it wasn’t exactly new evidence, but the re-examination of existing evidence using newer technology. But it was still new evidence with regard to the fact that it could further solidify the case the government was attempting to present.

Even if they had jurisdiction, without new evidence in regard to Casey Anthony, the United States Attorney would only be rehashing what the State of Florida has already done, meaning the outcome is likely to be the same. If you want to guarantee a chance at a change in the outcome, you need additional new evidence not already presented at the State level. The District Attorney that tried the Anthony case even said that she was acquitted for one simple reason: they could not establish cause of death. In other words, they could not show conclusively that Caylee’s death was the direct or indirect consequence of any action by her mother.

All you have to do is read the various statements given by the jurors. Everyone who has spoken about the case has said, rather pointedly, that the prosecution just didn’t support their case. Why would a Federal jury provide a different outcome given the same evidence? There is little reason to think they would.

Very rarely will the Federal government (or Court-Martial of the United States with regard to military personnel) take on a case for which a State trial resulted in an acquittal without any new, compelling evidence. If it does occur absent new evidence, it is typically due to some kind of demonstrated corruption in the trial process. The jury is always presumed incorrupt and impartial, as are the officers of the Court. If the jurors from the Casey Anthony trial can be shown to have been corrupted or in any other way not impartial when they considered the evidence and rendered their verdict, then that could prompt the Department of Justice to take up the case. That, however, appears highly unlikely.

Whenever the Federal government does take up prosecution against someone acquitted at the State level, the cases end up mired in controversy. Even though the Supreme Court has said numerous times that doing so does not violate the Fifth Amendment’s prohibition on double jeopardy, the presence of a power does not unto itself warrant exercise of that power. And given the risk of acquittal already presented at the State level, the Department of Justice will likely opt to avoid this case unless and until new evidence warrants a prosecution attempt.

Note: Please read my follow-up on the possible Federal prosecution of Casey Anthony

* * *

In the aftermath of the Casey Anthony trial there has been a profound lack of the presumption of innocence. And it is extremely infuriating and disturbing. People seem to have developed this idea in their minds that courts should listen to public opinion. And as Casey Anthony was convicted in the court of public opinion long before her acquittal, they feel she should have been convicted in a court of law as well. Thankfully that is not how it works. The Constitution is designed to protect us from mob justice, yet mob justice seems to be what the people are after.

It seems the idea of “alternate explanations fitting the evidence” doesn’t occur to anyone either. And if there is an alternate plausible explanation that also fits the evidence, the jury must acquit. It matters not whether you believe the explanation. The question is whether the explanation fits the evidence, or whether it is contradicted by it. To satisfy their burden the prosecution must show evidence for which there is only one interpretation: the accused is guilty.

In the first episode of Season 6 of Bones, skeletal remains of a toddler-age child were discovered, the hands and feet of the child were bound and the child was buried in a shallow grave wrapped in what was initially called a “blanket”. At the same time, there was a prominent missing child case that had received a lot of media attention and many in the media were convinced the remains were that of the missing child.

While they could demonstrate the remains were not that of the missing child, it was still a missing child, and the case still looked like a homicide. Was it child abuse that went too far? Did the mother kill the child so she could go out and party whenever she wanted, as Casey Anthony has been so accused? No. The case in the end was an accidental death and the mother panicked and disposed of the body. The bound hands and feet were a cultural custom (the mother was North Korean).

People do things like this. Accidents can turn into panicky situations. And how bad the situation may look after the fact has no bearing on whether the death is an accident or a homicide. A woman who does not report their child as missing and is stoic and remorseless when that child later turns up dead may be presumed guilty by the public. But looking guilty is not the same as being guilty, and presuming guilt is not the same as proving guilt.

You will never see a prosecuting attorney argue public opinion before a jury, and that is something of which we should all be thankful. You will also never see a prosecuting attorney argue appearances before a jury, something of which we should also be thankful.

* * *

Just as Federal prosecutors tend to avoid revisiting acquitted State cases without good reason (i.e. new, compelling evidence provided they have jurisdiction), I typically don’t revisit topics without a good reason. On the argument of getting Casey Anthony’s acquittal overturned, the matter is settled: it cannot happen. The dual sovereignty doctrine, however, was something I’d never encountered previously, so it was worth investigating.

But for those desperately looking for any way to get Casey Anthony back on trial for the death of her daughter, even that falls short. The Federal government will typically not exercise their jurisdiction under dual sovereignty unless there is new evidence that arises after the acquittal or there is clear evidence of corruption in the trial. The absence of both with regard to the Casey Anthony trial means there is no reason for the Federal government to waste taxpayer money and the Court’s time prosecuting a trial that has a high likelihood of producing the same outcome.

The aftermath of the Casey Anthony case is about one thing only: mob justice. That is the only thing prompting these online petitions and calls for the Federal government to exercise its dual sovereignty. They don’t care about justice. If they did, they’d let this case go. They care only about vengeance. A little girl is dead and a mother was stoic and seeming unremorseful at the thought of her death, including the fact it took her a month to report her as missing. She was crucified in the press and media long before her trial started. And now that she’s been acquitted, people want vengeance guised under the word “justice” because “justice for Caylee” sounds much more appealing than “Casey must pay for what she did”.

Dr. Martin Luther King, Jr., once said “Injustice anywhere is the threat to justice everywhere.” And there is no greater injustice than throwing a person in prison or death row for a crime that cannot even be proven to have been committed just to satisfy a mob’s calls for “justice”.

But one that comes close is when a prosecutor uses the media in a one-way campaign to turn the people of not just a county or State against a particular defendant, but the entire nation. People of America, you have been used by the media for many things. They’ve turned you either toward or against certain public policies through one-sided reporting, and they’ve turned you against a 20-something woman in Florida through the same one-sided reporting.

You saw only what the prosecution wanted you to see. That is why you were so appalled by the outcome of the trial. In your minds, you were thinking the case was open and shut, but in the minds of the jury, things were a bit more complicated. They made a decision based on facts, while too many people acting under the guise of “justice for Caylee” are calling shots based on emotions and nothing more.

Marriage/Politics

It’s all about the children!

Posted on by Kenneth Ballard / 0 Comment

As I mentioned in a previous post, a common argument against same-sex marriage is that the State licenses marriages as part of their interest in promoting procreation among its citizens. It was an argument tried in the Federal case of Perry v. Schwarzenegger. And as the argument goes, as same-sex couples cannot produce children (despite the availability of legal adoption, also routinely denied to homosexual couples), the State has no interest in licensing homosexual marriages. It is an argument loaded with a lot of problems. A common counter-argument often made is to raise the question of whether childless marriages should be nullified.

Recently I discovered an article that went into detail about this, but the response to the “childless couples objection” seems more like the writer was shooting from the hip, because he was making a lot of assumptions deriving from the false premise that States license marriages and provides benefits to married couples in an effort to encourage partnering up and procreating.

So let’s first examine this question: why do States license marriages? Here’s a hint (as if what I’ve already said isn’t a hint enough): it isn’t to encourage partnering up and procreating.

Almost universally across the United States, to have a marriage that is recognized by the government, you must first get the government’s permission to actually marry. This permission is declared in the form of the marriage license. For example, when I got married in December, we first had to obtain a marriage license from the county recorder’s office and pay a fee. It wasn’t always this way.

So how was it previously? To get a glimpse into history, we need to look at the several States that recognize what are known as “common-law marriages”.

A marriage at common law occurs when a couple, in short, live like they are married. By and large the main prerequisite for this is cohabitation, but the couple must also say they are married. If they explicitly deny the existence of a marriage, they cannot be said to be common-law married.

The Church, however, has had their hands on marriage for a long time. But churches also tended to accept a marriage as valid purely on the word of the parties involved: if the couple say they are married, the church also said they are married, regardless of whether a marriage was actually solemnized before a priest or minister. This is similar to today’s common-law marriages in many ways.

Then there’s the concept of the banns. Quoting Wikipedia:

The purpose of banns is to enable anyone to raise any canonical or civil legal impediment to the marriage, so as to prevent marriages that are invalid. Impediments vary between legal jurisdictions, but would normally include a pre-existing marriage that has been neither dissolved nor annulled, a vow of celibacy, lack of consent, or the couple’s being related within the prohibited degrees of kinship.

The banns wasn’t a legal requirement, but only a religious one. The Roman Catholic Church abolished the practice only in 1983, and the practice was typically associated with the Protestant denominations.

But where does licensing come into play? Licensing originated with the churches as well as a means of bypassing the banns requirement by paying a fee and having a certification by a Church official that the couple is able to marry.

In England marriage didn’t become part of the civil code until the 1753 with what is commonly known as “Lord Hardwicke’s Marriage Act” and was an effort to address clandestine marriages, which had been seen as a growing problem. The law, however, never applied outside England, meaning it never applied to the colonies that would become the United States of America.

And in the United States licensing was never a civil requirement… initially. That would change around the middle of the 19th century, around the time of the Civil War and the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution of the United States. What am I implying? Contrary to common assertion, marriage licensing in the United States wasn’t about promoting partnering up and procreating. It was actually about restricting that ability. Marriage licensing was initially about restricting marriage, with criminal penalties accompanying anyone who would dare defy those restrictions.

The marriage license gave the State a way to tell certain couples that they could not enter into a valid marriage. It wasn’t about allowing marriage or regulating it, and it certainly wasn’t about encouraging procreation among viable couples. It was about keeping the gene pool clean. Combine government monopoly on marriage through licensing, anti-miscegeny laws and the “one-drop rule”, and you’ve got a good, racist combination that had the intention of keeping the white gene pool as white as possible.

Licensing wasn’t about encouraging a certain kind of relationship. It was about restricting it. And many of those restrictions weren’t lifted until the Supreme Court put the next to last nail in the coffin of marriage restrictions in 1961 with the case Loving v. Virginia.

Now this isn’t to say that licensing doesn’t have its place. It certainly does, as it provides a valid, documented record that a marriage has been solemnized. If someone were to try to challenge the validity of my marriage, I can obtain a certified copy of my marriage license from the county in which the marriage was recorded as legal evidence that I am, indeed, legally married.

But these were benefits that were realized only after its original racist reasons for existence faded away and were largely forgotten. But these benefits are not about promoting procreation or even about promoting marriage. To the best of my knowledge there is no evidence that civil licensing of marriages encourages marriage in any way. Indeed today the opposite appears to be holding true as fewer couples are getting married each year, and those that do are waiting longer to do so. So where exactly is the encouragement?

The history behind marriage licensing in the United States essentially nullifies any argument that State involvement in marriage is about children. It isn’t. It never was to begin with. Not in the United States and not anywhere.

So let’s move on with the article. In it the author presents a “three-pronged” argument:

  1. States are involved to encourage procreation
  2. Marriage is “designed to be a burden” because the State wants couples to come and stay together to procreate
  3. Civil benefits afforded to married couples are to encourage them to stay together and procreate

The second and third points are merely elaborations on the first: States license marriage as a means of encouraging it so couples will pair up and procreate.

Again, the licensing and State involvement in marriage as a means of encouraging procreation is not true. Again licensing in the United States was never about promoting procreation, but only as a means of having legally-enforceable restrictions on marriage. So let’s move on to point number two of his “three-pronged” response:

Secondly, marriage is designed to be a burden.  The State burdens a couple with legal and social obligations in exchange for certain privileges such as tax breaks and social approval.  Why do this?  Because they have an interest in keeping a couple together.  Why might they be interested in keeping a couple together?  Is it because they believe in enduring love?  No, it is for the sake of children!

If marriage is designed to be a burden, it isn’t because of the State. Religion made marriage a burden. Religion got its mittens on marriage long… long… long before the government did. And society, heavily fueled by religion and religious indoctrination, provides the burden as well.

So this question needs to be asked: what legal and social obligations did the State impose upon couples that are married? There are none. The existence of the legal marriage I have to my wife burdens me with no more legal or social obligations than what existed prior to the marriage.

There are, however, plenty of legal privileges that exist because of that marriage, such as the tax breaks. And it is with tax breaks that the “encouragement” argument actually breaks down. Getting married entitles the couple to lesser taxes being taken from their paycheck, thereby putting more money into their pockets. Having a child reduces the tax burden even more. Now some could say that this is economic stimulus and that States encourage marriage and procreation to ensure future stimulus in the economy, but this doesn’t hold water.

First, children don’t become productive participants in the economy until they are legally capable of holding employment. Until then they are merely consuming wealth, not helping to create it. As such the reduced tax burden on the parents means only that the consumption of wealth is shifted from the government to the child or children they raise. And this reduced tax burden means that the government should not be encouraging procreation and marriage, as the government and those running it think only of themselves and the moment. The government is quite selfish, demanding and greedy when it comes to wealth.

Religion, on the other hand, has a huge vested interest in making couples and obligating them to one another till death do they part, with the wrath of God behind them. After all, more people meant more power by having more people to indoctrinate. And when marriage was the exclusive domain of religion, the procreation argument not only came into play, but enjoyed perfect validity. I wonder if the author is projecting some of what his church and religion desires onto the State, implying that what the State wants and what his religion wants are in essence identical.

And on to the third prong of his argument:

The benefits of marriage are not the State’s way of “rewarding” couples for their love or commitment to one another.  The benefits that accompany marriage are provided to encourage the couple to stay together so that they will produce and rear children together.

He’s right that the State isn’t rewarding couples. But I have to disagree that the government benefits “encourage the couple to stay together”. Children may be a joy, but they are also an 18 year-long burden, sometimes longer. And with more than half of all marriages ending in divorce, the encouragement must not be very encouraging.

Further I feel all of us can agree that the State did not encourage you to get married, nor did the State encourage you to have children. So what did?

People partner up and have children because that is our biological inclination. Humans were having children long before they had established governments, and that’ll remain the case even if civilization ends up completely disbanded. Reproducing is the one activity at which life on this planet has become very adept.

And those same children we are biologically inclined to have is also what keeps couples together with their children. This is the direct result of evolution. You see in most species it is the mother that exclusively cares for the child until they are ready to stand apart on their own. This is true in almost all mammalian species as well. We are one of only few exceptions. Where this quality originated I don’t know, and I’m unsure if there is an answer to that question. But one thing is certain: a biological inclination on both parents to be involved in the development and nurturing of their children better ensures the survival of those children. And the survival of offspring at least long enough to have offspring of their own is necessary to carry on the species.

Divorce severely restricts this. By getting divorced or splitting up, parents cannot be as involved in the raising and nurturing of their children. In short children, and children alone, are the encouragement for parents to stay together. And even with childless couples, the biological desire to reproduce combined with the ready availability of a sexual partner encourage those couples to stay together and stay married – unless something just wholly kills any sexual attraction. The State through the “benefits” and privileges afforded married couples don’t encourage it. I would also consider it reasonable to say that most couples don’t even consider privileges or benefits afforded by the government in their decision to get married or have a child, so where exactly is the encouragement?

Further parenting is one of those things you have to want to do. If you don’t want to do it, there is no amount of encouragement the government can provide to get you into it. People are not stupid. They know what parenting requires because we were all parented. And people know that the government doesn’t encourage people to become parents. Our own biology does that.

Ask people why they became parents and you won’t find many people say that it was due to any kind of encouragement from the government or their church. It is asinine and ignorant to even proffer such as an argument.

* * * * *

I have to commend the writer of the article to which I was responding for putting together a well thought, well-structured argument attempting to defend the notion that the State encourages marriage and procreation and that marriage is about procreation because of this State encouragement. Unfortunately, when actually put under examination, we can readily see that such an argument does not hold water.

So where does this leave the argument that marriage is all about children? As far as I’m concerned, the argument is null and void, completely immaterial and inapplicable in any situation. While the argument is often raised in discussions on gay marriage, it doesn’t apply to those discussions at all. The desire of the government to continue restricting marriage on account of sexual orientation is merely a continuation of a legacy going back at least 150 years.

When the government established itself as the monopolist authority on marriage and marriage licensing, and declared that to become married you must first receive the government’s permission, they also gave themselves the ability to call the shots. And in many cases the shots they called pleased the majority often at the denigration of a minority. Initially that minority was a racial minority, but in 1961 that was overturned.

Now it’s gays who are having to fight to be able to marry who they want.

It is a fallacy to say that the State licenses marriage as a means of encouraging it and encouraging procreation. They don’t encourage it, nor do they need to encourage it. Instead State involvement in marriage is about having the legal force and the legal threat of violence to enforce perceived societal desires or norms. Nothing more.

Marriage

Would you support such a measure?

Posted on by Kenneth Ballard / 0 Comment

Quoting a news report:

Revocation of all marriage licenses issued in Nebraska in cases where no children are born within two years, making exceptions for physical disabilities when properly certified by a physician, was proposed here today by City Health Commissioner A. S. Pinto. Dr. Pinto announced that the [sic] would support such a bill before the Nebraska legislature.

Dr. Pinto also announced that he would support a bill requiring physical examinations of all applicants for marriage licenses.

“There is a growing tendency among men and women to enter the married state when both are regularly employed,” Dr. Pinto explained, “and after marriage both remain in employment and have intentions of continuing at work. In many cases, I would say their marriage is merely to legalize their living together, to give an air of respectability to their domestic relations.

“Many young women marry these days and remain in their work because of their love of jewelry, furs and their feeling of independence when comes when they are on a regular wage basis.”

The last sentence likely shows that this article was not of recent vintage, but was written back in 1924. But when I read it, it sounded very much like an article that could easily have been written within the last decade with regard to the many stated opinions regarding marriage and its declining numbers. Dr Alva S. Pinto was the Omaha health commissioner mentioned in the article. This article was written when the Roaring ’20s were still roaring loudly.

But it asks a very important question that is raised with regard to the gay marriage debate. A common argument brought up by anti-gay marriage proponents is that marriage is for procreation of children and raising a family. Yet there are many marriages that are childless by choice, and that number is rising, and also marriages by a heterosexual couple for which procreation is impossible: the marriage my late grandfather enjoyed before his death is one such example. Should we, therefore, revoke the marriage licenses of couples who remain childless by choice? Should married couples be given a specific time frame in which to have or adopt a child before their marriage license is basically null and void? And would you support nullifying the marriage licenses of childless couples?

As was reported in an article a few days later, his idea received a lot of negative feedback, including from his own wife:

Mrs. Pinto, on the other hand pointed out that if [her husband’s] law had been in effect when they were married they have been divorced many years ago. Their first child came more than two years after marriage, she said.

Dr Pinto’s motivation, however, was entirely eugenic in nature:

Dr. Pinto asserted that if something is not done to increase native stock the lower European races soon will control the United States. He advocated a law taking married women out of industry and providing annulment of marriages where there is no issue in two years, so that either party can try again.

…

Dr. Pinto declared his stand while discussing the Nebraska marriage law which provides for ten days’ notice before licenses are granted. He advocated strengthening the law by adopting an eugenics amendment forbidding epileptics to marry and insertion of the two years’ marriage clause.

Now while Dr Pinto’s motivation was not entirely honorable or respectable, the question still stands. Since hetero-exclusive marriage proponents constantly say that marriage is about bearing and raising children, should childless marriages be declared null and void?

Sex

Reading too much into a gift

Posted on by Kenneth Ballard / 0 Comment

Valentine’s Day is approaching, meaning yet another holiday where gifts are mandatory for relationship peace and harmony. So let’s talk about gifts.

And it seems that the one area where guys should definitely be cautious when shopping for their significant other is with gifts involving sex. And I can understand why. Giving any kind of gift that revolves around sex or your sex life can breed feelings of insecurity, especially if the woman in question is not into that kind of thing.

However one argument with which I have a problem was given in a list of (primarily Christmas) gifts to not give a woman on Yahoo! Shine by Jennifer Romolini. On the list after a cleaver (yes, a cleaver) was a "sexy" costume, and the description for it caught me the wrong way:

Um, yeah. Let me tell you why this is a bad idea. It made me feel self-conscious that the boyfriend who bought it was unhappy with our love life. Also? It wasn’t my taste at all. Also? It was really a gift for him.

* * *

The second point of this is key: it wasn’t her taste or style. Any product revolving around sex should always be purchased as a joint decision. There are exceptions to this, but not many, and this rule especially holds true for costumes or lingerie where size and style are the main considerations.

But then there’s the fantasy itself. You should not just spring a fantasy on your significant other. You should discuss the idea to see if they’re into it. Acting out fantasies should be fun and sexy, not a surprise that turns them off. This also means if you’re going to go the costume route, you definitely should not just buy the costume without talking about it. What if her role-playing fantasy has been to act as a police officer in an interrogation wanting to tease information out of a reluctant suspect, but you bought the French maid outfit instead?

The right fantasy for both of you is one you mutually decide to try after discussing it. And there is definitely nothing wrong with wanting to indulge in the fantasy.

* * *

The first point of Jennifer’s description is what caught me wrong: the implication that he was somehow unhappy with their love life. Wanting to indulge in a sexual fantasy is not a sign of unhappiness or dissatisfaction. Wanting to try something new is also not a sign of unhappiness or dissatisfaction. To demonstrate the fallacy behind this, let me use something else: cooking. I think it’ll be a lot easier to explain using this analogy.

From the point of view of the girlfriend, let’s say you have a boyfriend who has marvelous cooking skills. Then one afternoon you come across a new recipe, a variation on something he’s already cooked for you, or perhaps something completely new. If you were to show that recipe to your significant other, do you think he’d be offended at suggesting a new recipe you think would be something great to try? Would you for a moment consider that making such a suggestion would be taken as you not being satisfied with his cooking skills? I would hope not. In fact, he’d probably be thrilled that you want him to cook it for you rather than, say, finding a restaurant in your area that serves it.

So then, why the exact opposite with regard to sex? Why take a suggestion on trying something new as a sign of dissatisfaction? It should not be, as that is not what it means. Now if it is sprung on you at the most inopportune time – examples being as a Christmas, birthday, or anniversary gift or while you’re in the middle of it – then it could be disconcerting, but it still shouldn’t be taken as "oh he must not be happy with our sex life".

Sex is like cooking in many ways, of which this one is key: you need to try new things to keep it exciting. If you don’t switch things up every now and then, eventually you’re going to get to the point where your sex life becomes as routine as making the same thing each day of the week – this doesn’t mean same recipe either, "Oh we always have fish on Thursdays…" And once your sex life falls into routine where it’s "same thing, different day", eventually it becomes boring and that’s where problems can arise: either you fall into a sexless marriage or relationship, or affairs start entering the picture.

This is why there must be an open dialogue.

Sex should be a topic you can discuss without feeling any kind of embarrassment, being discrete where necessary of course. Even a notion as simple as buying a bottle of personal lubricant from Wal-Mart should be easy to discuss. And if you’re a woman who thinks that such a purchase means there’s something wrong with you, that is not what it means at all (I’ve seen women actually attempt to claim this). Not every woman is going to be as wet as a river when aroused, and this may be especially true in the days during and after your menstrual cycle. Post-menopausal women are also susceptible to vaginal dryness that can affect intercourse, so a bottle of lubricant can definitely go a long way to helping your own sexual comfort.

But the simplest way to keep your sex life satisfying is by talking about it with each other. Yes, discussing sex with your significant other without embarrassment is necessary.

And part of that discussion should include trying new things. Just as there are books, articles and websites for cooking, there are books, articles and websites discussing sex and new things you can try – and no, I’m not talking about porn sites. If you’ve typically glossed over those, give them a read every now and then and discuss what you’ve read with your significant other. Or read them together.

If you are genuinely unhappy with your sex life, unsatisfied in what you are getting, then dialogue must be opened. After all, your significant other won’t know that you’re unhappy unless you say you are unhappy. And if you are unhappy, there are plenty of suggestions of what can help once the root of the problem is found – which can really only occur with an open dialogue.

But you should not automatically take the suggestion of employing something new in your sex life as a sign of unhappiness. After all your sex life is very similar to your cooking life in many ways. If you won’t take the suggestion of trying something new in the kitchen as a sign that your significant other is not satisfied with your cooking, so too you should not take a suggestion of trying something new in the bedroom as a sign they are not satisfied sexually.