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 and Relationships/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 and Relationships

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.

Constitution

Revisiting Gabrielle Giffords

Posted on by Kenneth Ballard / 0 Comment

Gabrielle Giffords working at desk crop

It has been a little over a year since the tragic attempt on Representative Gabrielle Giffords’s life. First we must not forget that a Federal judge was also killed that day and the life of a 9 year-old girl was cut hopelessly short.

But at the same time, we cannot forget her congressional district. Every district in the United States is entitled to representation in the House of Representatives under the Constitution. And the district she represents, the 8th District for Arizona, has been without its representation since the attack.

It is without any doubt beyond absurd that she was not expelled within a month of the attack. It is beyond unfair to the people of the 8th District of Arizona that they have not had an opportunity to be represented in the House of Representatives. But the sad fact of the matter is that it is not unconstitutional, and it needs to be.

How is it not unconstitutional? Article I, Section 5 of the Constitution provides each house of Congress with the ability to determine the qualifications of their own members:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members … and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

This is how Representative Giffords has been able to retain her seat in the House, including her full salary and other benefits, without actually being there. So for a year, her full salary and her medical care have been paid by those who pay taxes to the United States Treasury. And in return the 8th Congressional District of Arizona has received nothing. No representation in the House of Representatives, and therefore no ability to assent or object to any legislation that comes before the House or any committees to which Giffords is a member.

And now word has recently surfaced that Giffords is considering running to be re-elected to her seat in the House, despite no record of service for 2011 with the exception of one vote on a bill for which her one vote made no difference to the bill’s outcome. She needs to step aside until it can be determined that she is fit for service and able to take on the rigors and stresses that come with the job of a Representative. Further, she either needs to resign her position or be expelled from the House of Representatives such that the People of her district can select a new member, so the People can have the representation in Congress to which they are entitled under the Constitution.

Along with this, I propose the Constitution be amended such that the incapacitation of members of the House and Senate can be properly accounted, such that the people represented by that member can have that person recalled in the event of their incapacitation and new representation selected. Currently there is no remedy for the People of a District, other than a regular election, when their Representative or Senator is incapacitated and the House or Senate refuses to expel that member. There must be an additional remedy for either the People of a District or the Legislature of the State from which that Representative or Senator comes.

Allowing Giffords to be an example, the People of her District should have had the ability, last year, to recall her from her seat and allow another person to be selected in her place. Or, alternatively, the Legislature for the State of Arizona should have been allowed similar capacity, to declare that Giffords is incapacitated with respect to her duties as a Representative and hold an election to select a replacement.

Again, the Constitution should be so amended, and I would fully support such an Amendment, and I will likely be sending such an idea to my Senators and Representative in the coming weeks. I will post the details of such a communication if it occurs.

Health care/Life/Religion

Miracles

Posted on by Kenneth Ballard / 0 Comment

The answer you receive to any question regarding miracles will depend greatly on the person you are asking. Some will say that miracles occur all the time while others will say that everything has a rational and reasonable explanation, even if finding that explanation is difficult or even impossible depending on the circumstances of the evidence.

It is rather infuriating how people throw around the word "miracle" for things that, if they just look around, aren’t such rare occurrences. Calling a common occurrence a "miracle" is to degrade the word. Babies are conceived and born all the time, yet every baby is called a "miracle". Defying odds is not a miracle. It is merely defying odds. Something occurring for which there is plenty of evidence suggesting that said occurrence is impossible would be a miracle.

In other words, something that is possible, however remote, cannot be a miracle by definition.

So is it correct to call the case of the 21 year-old student who "miraculously" awoke from a coma a miracle? No.

People wake from comas, so the fact 21 year-old Sam Schmid awoke from a coma, into which he fell following a 5-car collision, is unto itself not a miracle. Comas are also still largely a mystery with regard to neurology, and while we can determine with a reasonable degree of certainty if someone is in a coma, judging the degree and whether someone will awaken is a bit difficult. Physicians do misjudge both. So the fact the physicians misjudged the degree of this person’s coma and miscalculated the possibility of waking up is also not a surprise.

Further the age of the patient must also be taken into account – something few appear to be doing. Younger patients tend to be better able to bounce back from injury, often "defying odds" and exceeding physician expectations. Are these events "miracles"? Certainly not. With proper treatments and the necessary degree of immobilization, the human body can repair many injuries it sustains. But there’s the caveat: with proper treatments and the necessary degree of immobilization. And some people can and do heal faster than others.

So what would be a miracle then? Here’s an example: a compound fracture that heals back to normal with no immobilization of the arm and no treatments for any wounds, including the punctures and tears of the bones going through flesh within days instead of weeks. Without treatment there may be some "healing" as the human body will do what it can to repair the damage, but a compound fracture poses an almost certain risk for infection and gangrene, meaning a compound fracture that is not properly treated will almost certainly require amputation. As such a compound fracture in a limb that heals completely with the bone, skin and flesh all returning fairly close to normal with no intervention of any medical nature would itself be a miracle.

However a 21 year-old victim of a 5-car collision coming awake after being in a coma for the better part of 2 months isn’t a miracle, as the article describing the student’s injuries states plainly (emphasis added):

For days Schmid didn’t seem to be responding, but what puzzled his doctor was that he did not see fatal injuries on the MRI scan. So he decided to keep Schmid on life support longer.

"There was plenty wrong — he had a hemorrhage, an aneurysm and a stroke from the part of the aneurysm," Spetzler said. "But he didn’t have a blood clot in the most vital part of his brain, which we know he can’t recover from. And he didn’t have a massive stroke that would predict no chance of a useful existence."

In other words, despite the fact he was not being responsive, there was still an expectation of recovery. But that expectation does dwindle as time goes on: the longer a patient is comatose, the less likely they are to awaken. A comatose patient could also slip into what is called a "persistent vegetative state", out of which recovery and awakening to consciousness is very rare.

Further the MRIs were showing that Sam’s body was recovering, healing itself from the inside after doctors intervened to repair the most life-threatening injuries:

So while the family was given a realistic picture of Schmid’s poor chances for survival, Spetzler ordered one more MRI to see if the critical areas of the brain had turned dark, indicating brain death.

…

The MRI came back with encouraging news during the day and by evening Schmid "inexplicably" followed the doctors’ commands, holding up two fingers.

Again this isn’t a miracle. The fact he is doing so well after waking shows that the coma served a purpose: the brain gave the body a chance to heal itself.

But what is even more disconcerting about calling this person’s recovery a miracle is simply this: if it truly is a miracle, it isn’t one that proves a point. It isn’t evidence for any god, especially the god of the Bible. If the god of the Bible were to perform a miracle that could be seen by anyone as being a miracle, then instead of waking a comatose patient, wake one that is unmistakably dead, say in the casket in front of the congregation during a funeral.

Or even better, cure a little girl for whom recovery has been deemed impossible. You see on Monday, December 19, 2011, a little girl of the tender age of three years old died of leukemia. I know her only as Sidney Mae. She spent much of her short life in a hospital. Her grandfather is also a rather prominent atheist, well known among atheists all across the country. Why wake a 21 year-old comatose patient when you could cure a 3 year-old of her leukemia and likely convert an atheist in the process?

Why call the awakening of a 21 year-old car accident victim a "miracle" when a true miracle to be performed that would have undeniably shown the existence of a higher power would have been to heal a little girl who’d been suffering with cancer for much of her very short life?

Sam’s recovery was remarkable, to say the least, but a miracle it was not for one clear reason: miracles do not happen.

Life

Christopher Hitchens

Posted on by Kenneth Ballard / 0 Comment

Christopher Hitchens
April 13, 1949 – December 15, 2011

I first discovered Christopher Hitchens about 5 years ago when I was browsing YouTube. Someone had posted a copy of a lecture he’d given at the University of Toronto in which he was discussing the right of free speech and the various ways it is being inhibited. In that lecture he called Oliver Wendell Holmes "fatuous and overpraised", but also said in a nutshell that free expression is exceptionally important to a free society.

It was a lecture with which I found much agreement. I quickly became interested in other things he has done or said, finding other lectures and debates online in which he has participated. His views on religion and the supernatural were also agreeable to me. He had gained one more atheist supporter.

But it wasn’t his points of view that kept me interested in him, including reading his articles and essays. It was his way with words. Say what you will about Hitchens’ points of view, the way he expressed them had an elegance and style that could only be called unique. Sometimes his tone came across as caustic, likely intentionally, but the way his tone was expressed made his words seem like the caustic words were a finer grit of sandpaper that could glide easier across your skin without taking so much of it with each pass.

If one word could sum up Christopher Hitchens, that word would have to be brilliant. Brilliant until the end when his cancer overtook him.

He will definitely be missed.

Constitution/Law/Politics/Supreme Court

Ron Paul and the Federal courts

Posted on by Kenneth Ballard / 0 Comment

I’m surprised that the Republican establishment isn’t more in favor of Ron Paul. He is delivering on a part of the Republican platform that I’m sure plenty of other Republicans would love to see enacted, or at least the hardline Christian conservatives. How so? HR 958 – We the People Act

This bill was introduced by Dr Paul on March 8, 2011. It seeks to limit the jurisdiction of the Federal courts with regard to actions of State and local governments and agencies. It seems the good Doctor has forgotten a bit about the jurisdiction and role of the Courts. Let’s review.

The jurisdiction of Federal courts is established by Article III, Section 2 of the Constitution: (stricken portion clarified by the Eleventh Amendment)

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

The first portion of this section is what is most prominent, and is what Dr Paul seeks to override with his bill:

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority

This establishes the original jurisdiction requirement: any question where any law conflicts with a Federal law, treaty or the Constitution of the United States must be given a forum in a Federal court. In those cases the court of original jurisdiction on that question is typically a United States District Court. Congress can and has assigned original jurisdiction to other courts, such as the various bankruptcy and tax courts. But the Constitution requires there to be a court of original jurisdiction at all times. Congress cannot eliminate this.

The only limitation on Congress assigning original jurisdiction is with the Supreme Court. Congress cannot amend or degrade the original jurisdiction of the Supreme Court. Congress has the power to muck with the appellate jurisdiction of the Courts, and has in the past. But such a power may, in fact, be overridden in part by the First Amendment, namely the provision providing for the right of the people to "petition the government for a redress of grievances". And a case that is not decided in your favor may in fact be a grievance under the First Amendment.

Limitation of Jurisdiction

Section 3 of Dr Paul’s bill seeks to limit the jurisdiction of the Federal courts, stating that no Federal Court, including the Supreme Court of the United States, shall hear a case involving:

  1. any claim involving the laws, regulations, or policies of any State or unit of local government relating to the free exercise or establishment of religion;
  2. any claim based upon the right of privacy, including any such claim related to any issue of sexual practices, orientation, or reproduction; or
  3. any claim based upon equal protection of the laws to the extent such claim is based upon the right to marry without regard to sex or sexual orientation

None of this is constitutional in the least, not by any stretch, because Congress cannot eliminate the original jurisdiction of the Courts. If there is a question of a conflict regarding anything at the State or local level and any Federal statute, treaty, or the Constitution of the United States, that question must be given a forum in the Federal judiciary. The limitations above could only constitutionally apply to the appellate jurisdiction within the Federal judiciary.

So what kind of cases would these points affect? What cases would basically be stripped from the jurisprudence of this country with the stroke of the legislative pen? Here are some examples, and it’s convenient that these are the kind of cases likely to get a Court or judge labeled as "activist" by conservatives:

  1. Kitzmiller v. Dover, the 2005 case in Pennsylvania regarding intelligent design in public schools; any case involving the Pledge of Allegiance with regard to "under God"; all cases involving prayer in public schools; Torcaso v. Watkins; Everson v. Board of Education
  2. Planned Parenthood v. Casey, Roe v. Wade, Griswold v. Connecticut, Eisenstadt v. Baird, Lawrence v. Texas
  3. Perry v. Schwarzenegger

This is a very dangerous idea indeed: the Supreme Court decisions that many Christian conservatives want to see nullified rendered such by the stroke of a legislative vote and President’s signature. If you cannot see danger behind this idea, you are in need of a serious education. Further this bill, if passed into law would prevent future cases in Federal courts involving these topics, and would render these decisions inapplicable to the States and State courts.

Thankfully this bill is likely to suffer the same fate it has in Congresses prior: a silent death at committee.

Now Perry v. Schwarzenegger is still relatively new on the jurisprudential landscape, but it’s making its way through the appellate process. The other cases I’ve provided above are examples of established jurisprudence. And Dr Paul thinks that this can be ended with an ordinary act of Congress? And I thought Perry’s ideas for amending the Constitution were dangerous.

While it is certainly great that Ron Paul wants to bring this country back to the original scope of the Constitution, I think he needs to brush up on a few things.

Life/Religion

Dear Mom and Dad

Posted on by Kenneth Ballard / 0 Comment

Dear Mom and Dad,

I know you are disappointed that I am an atheist. But you do remember that you never actually exposed me to any religion. In fact you made it a point to not do that. You allowed me to discover the world and universe for what it is, including all the various claims others make about it. Though we have come to differing conclusions about the nature of the universe, you recognize you gave me the freedom to come to a different conclusion rather than indoctrinating me into one particular set of answers.

Words cannot describe how grateful I am that I’ve had that freedom and independence.

Though you are disappointed by this one point of view that I hold, you love and accept me fully for who I am and who I have become. You are proud of my accomplishments and have overlooked most of my faults. You don’t let this one point question whether you were good parents or debate if there was some place along the line where you went wrong or didn’t do enough. Instead you are still there to be mentors for the various paths I will be taking on this road called life.

You could have done better as parents, but you also could’ve done much worse. You could’ve raised me with an indoctrinating hand, and turned me away when I questioned it all. Instead you preferred I think for myself, learning and discovering things along the way. Your love as parents is not conditional on the views I hold, conditional on holding the same views you do, and I am again grateful in ways that words cannot do justice.

As I read around about other atheists who’ve been turned away by their families, or who face unending criticism, shaming, and guilt-tripping, I’m grateful that I am one atheist who does not need to worry about that. I’m grateful that you, my mother and father, accept me for who I am and love me without any condition, expressed or implied.

Your loving son.

[Inspired by a recent blog post by The Thinking Atheist called “Dear Mom and Dad (a letter to a religious family)“]

Religion/Republican platform/Supreme Court

Public schools and the Ten Commandments

Posted on by Kenneth Ballard / 0 Comment

The time has come for another revisit on the First Amendment and public schools, namely the protections of the First Amendment regarding religious freedom. Namely the revisit is regarding the Ten Commandments, brought to you by the School Board for Giles County, Virginia.

So let’s make the question very plain: does a school violate the First Amendment when putting the Ten Commandments on public display? While virtually every Court that has addressed this question has said "Yes", let us examine more closely why this is the case.

First, a public school is a government entity created by an act of government. The incorporation doctrine says that the limitations of the First Amendment apply to State and local governments and any entities created by that government, including public schools. So public schools and their school boards are limited by the First Amendment.

So how does displaying the Ten Commandments run afoul of the First Amendment?

Namely the display runs afoul of the Establishment Clause: "Congress shall make no law respecting and establishment of religion…" I’ve already discussed the meaning of these words in great detail, so I highly recommend you read it if you are under the impression that these words simply mean that Congress cannot establish a religion:

With regard to the First Amendment regarding Congress’ prohibition on making laws "respecting an establishment of religion", the Constitution is prohibiting Congress from making laws that have regard for the foundations and principles of all religion.

Again this limitation applies to the States and their local municipalities and any government-created entities by way of the Fourteenth Amendment.

So how does the Ten Commandments come into play here?

The Ten Commandments exist only in a religious context, namely in the Pentateuch, with similar wording appearing in the Qur’an, but when individuals consider the Ten Commandments, they tend to consider only the words in the Book of Exodus. This means that the school that places the Ten Commandments on display is doing so in respect to the establishments of Christianity and, indirectly, Judaism. The respect is in the form of indirect promotion of those religions.

The First Amendment, again, forbids any level of government from "respecting an establishment of religion". So by respecting the establishments of Christianity by attempting to indirectly promote Christianity through the display of the Decalogue, the school is running afoul of the Establishment Clause. It’s as plain as that.

And a public school can no more display the Eight "I’d Rather You Didn’ts" than it can the Ten Commandments. It is enjoined in all cases.