Christine O'Donnell and Constitutional Interpretation

You might know Christine O'Donnell as the Republican nominee for Senate in Delaware. She is running against Chris Coons.

Recently, she challenged Coons to ask her where the specific statement "separation of church and state" appeared in the Constitution. Then, in an interview, she thought she got the "upper hand" on Coons by getting him to duck a question about naming the five power guaranteed in the first amendment. She concluded that he did not know what those five powers are (speech, petition, religion, assembly and press).

She felt it was necessary to clarify what the first amendment said about freedom of religion (establishment clause): "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." She is right. There is no language that explicitly states that there should be a "separation of church and state."

But, the constitution does not explicitly state:

• Corporations should have first amendment rights (Citizens United Case)
  
• The right to parenthood counseling should not be infringed upon (Griswald v Connecticut)
  
• Schools should be desegregated (Brown v Board)
  
• Interracial marriage cannot be outlawed(Loving v Virginia)
  
• Consenting adults cannot be prosecuted for sexual activity within their own home (Lawrence v Texas)
  
• A bridge company has the right to charter a toll road in the spirit of competition even if it violates a contract (Charles River Bridge Case)
  
• Native American tribes are their own sovereign nation (Cherokee Nation v Georgia)
  
• Bakers have the right to an 8-hr work day (Lochner v New York)
  

Well...you get the idea.

The Constitution does not explicitly state that there is a separation of church and state. But, upon a simple interpretation, one can obviously see the meaning of the Establishment Clause. It clearly states that "Congress shall make no law." This means that in the arena of "free exercise" of religion, the state (government) has no jurisdiction. Any attempt at such would be overreaching. Therefore there is a SEPARATION of the state from the sphere or jurisdiction of religion. It also gives individuals the right to freely exercise their religion without impairment.

This is where O'Donnell is so unbelievably wrong about her constitutional leanings. The power of the constitution is in its constantly evolving interpretation. This is why the case Marbury v. Madison was so important. It gave the right to the Supreme Court to interpret the constitutionality of laws, or Judicial Review. All of the examples I mentioned above were ruled on by the Supreme Court, and in each case they extended or rejected a ruling based on the interpretation of rights inherent in the Constitution.

Here is a quote from my favorite Supreme Court Justice, Oliver Wendell Holmes, Jr., that sums it up pretty well:

"law, wherein, as in a magic mirror, we see reflected, not only our own lives, but the lives of all men that have been"

One Prop 19 Prediction is Confirmed

It looks as if the Federal Government is both opposed to Prop 19 and has vowed to continue to crack down on marijuana usage as a violation of the Federal Controlled Substances Act. Eric Holder responded for the Dept of Justice.

This is 2 for 2 in regards to predictions. See my correct prediction on the constitutional challenge to AZ SB1070 for my first act of prognostication.

Endorsement: NO on Prop 19

Yup...you read that title correctly. I am opposed to Prop 19. And, here's why:

You may have read all the reasons why legalization of Marijuana in CA will help the economy, undercut the drug cartels and possibly stem some of the violence that has been the end-result of the illegal marijuana trade, south of the border. That is the desired result of Prop 19. But, once reality sets in, legalization of marijuana won't be so desirable:

Legalization would help revive the CA Economy: Some reports have said that legalization of marijuana would pump as much as $2 billion into the CA economy in the form of taxes ($50/ounce proposed). I don't dispute the fact that the prop will funnel some money to the economy. In fact, we must always find innovative ways to get us out the deficit hell we are in. But, the numbers may be a little too optimistic. The uncertainty comes from how the prop is written (which is something I will harp on throughout this piece). If we were to have UNIFORM legalization, then the numbers proposed would be relatively accurate. But, the prop gives freedom to any county or city to opt out. Any opting out would seriously undercut the tax money that would be funneled back into the state. Just look at the polls - right now support is about 50/50, which means that those who are really against it will most likely push their locality to opt out.

Here is my political answer: legalization is sidestepping the issue (much like I will) of proper governance. CA is ungovernable, and the first thing we should be doing is eliminating the 2/3 majority to pass a budget and Pension reform. Keep the 2/3 majority to pass a tax, as that is a CA sacred cow.

It would undercut a source of income for the Mexican cartels and (by association) stem violence south of the border - Not so much, says (credible) RAND Corps. Their report on methods to stem Mexican drug violence says that the percentage of cartel marijuana consumed in the US (60%) is way overblown. The actual number ranges between 15-26%. If CA represents 1/7 of the marijuana consumption in the United States, according to RAND, the prop would only cut 2-4% of the cartel's marijuana revenue. If the known revenues of marijuana smuggling from Mexico to the US is around $2 billion (conservative estimate), then it would only cut their take by $40-80 million. For drug cartels, who practically control parts of Mexico, that is a drop in the ocean in regards to revenue (think of the OTHER, more lucrative drugs they smuggle into the US).

CA is also a hub through which Mexican marijuana (and other drugs) can be distributed throughout the United States (as in AZ, NV, TX, NM, etc). So, the only way that this prop will stem the distribution of cartel marijuana would be if CA marijuana out-competed Mexican marijuana on all levels (cost, potency, access, etc.). Adding to the uncertainty would be problems about taxing the marijuana before it heads to other states and how state and federal officials would react to such a dispersion (what some might call "positive leakage?").

As the report notes, the assertion that the prop would contribute to a stemming of violence south of the border is highly speculative and most likely false. They assert that it will probably lead to more violence over the perceived loss in revenue, regardless of how small it is. There are also problems of turf warfare between cartels that will occur regardless of whether or not pot is legalized. The ultimate uncertainty is whether or not CA marijuana will outperform and push Mexican cartel marijuana out of the markets in other states.

Structural Flaws in Prop 19 - While its intentions are certainly noble, Prop 19 has a major structural flaw that will create regulatory uncertainty. The law allows for every county/city (I call "locality") to decide whether or not it wants to legalize (and tax) marijuana or make it outright illegal. This allows for each city/county to create its own set of regulatory procedures, leading to enforcement uncertainty. It also leads to aforementioned loss in tax revenue if a locality decides to opt out.

Leakage and Federal Prosecution - If Prop 19 passes, I am almost certain there will be a higher demand for CA legal weed. But, what happens when this legal weed begins to travel from one state to another? Once that happens, and someone is caught, it becomes a federal matter because of the Fed's power over interstate commerce and the violation of federal drug enforcement laws. Marijuana is still a federally designated class 1 narcotic (DEA), as much as we would like to see a reassignment. While the government will probably not actively enforce marijuana laws, if a state decides to prosecute someone who comes from CA with legal weed then it is up to the state to enforce under their laws or federal laws. And, what is going to stop the US Justice Dept. from filing suit and injunction to stop Prop 19 because of its conflict with federal law? It is their duty to file against any law that comes into conflict with a federal statute. That's why they are filing against an injunction on "don't ask don't tell" and state laws that go against DOMA (Defense of Marriage Act). That's why they sued the state of Arizona for passing an immigration law when it is clearly the Fed's duty.

Wake up and smell the Profit loss - If you are a good dealer, you will understand clearly that legalization will take a huge chunk out of your bottom line. The environment for dealers and sellers (legal or otherwise) is favorable towards high profit. There is a lack of enforcement, the president has diverted resources from CA and the price per ounce is high enough to attract business and make a killing (no pun intended) doing it. What will stop these dealers from trying to return to the good old days of high profit after Prop 19 passes? Nothing. The market for weed is primarily underground and informal. If Prop 19 passes, that market might cause an abatement in the sliding price of weed. While underground markets for goods are usually a drop in the ocean in regards to the formal markets, the one for weed in CA will be a big player. If you think otherwise, you are being naive.

Solution? One just passed a couple days ago. The Governator signed a law, going into effect on 01/01/11, that will reduce the punishment for possession of an ounce or less to an infraction. That is a fine comparable to a speeding ticket, with no mark on your record. Coupled with lax enforcement, this is practically a legalization in-and-of-itself.

Conclusion I support the legalization of marijuana. It is the least addictive controlled substance and it is an innovative way to raise money for the state (and snack food companies). But, Prop 19 is badly written, will create regulatory and enforcement uncertainty and will most likely lead to intervention by the Federal government. While this is a healthy step and represents a near mandate for legalization, it must be rewritten to be uniform, or it will fail as a policy.

Arnold, CA Governor, Takes Oil to Task over Prop 23

This is an amazing video. Arnold, the Republican, who signed into law AB32 takes Texas based oil companies Valero and Tesoro to task over their misleading commercials supporting Proposition 23. This proposition would suspend the law until unemployment drops below %5.5 in CA for more than 4 quarters. This doesn't even happen in a healthy CA economy. So, this prop would essentially kill AB32.

They claim that the bill will kill jobs. What they don't get is that AB32 has been signed into law, and has been working for 3 years, creating 150,000 clean tech jobs and attracting clean tech industries, like Tesla to CA. There is a reason that Silicon Valley vehemently opposes Prop 23. They have gained substantially from the incentives in AB32. AB32 has helped CA becomes the center for innovative technology that benefits the environment. CA will lose its competitive edge in this market, if Prop 23 passes. VOTE NO!

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You Can't be a Stubborn A$$ and Evoke the Founding Fathers

If you have a pulse and have the smallest interest in the upcoming midterm elections, you might know the mantra of the Republican party. Republicans have looked to score major political points in November by opposing most of the Administration's initiatives and bragging about their fiscally conservative nature. They have been courting the TEA party by campaigning and supporting their endorsements in Alaska, Delaware, Nevada, Kansas and a few other states whose mere livestock to population ratio might be considered a justifiable reason for being annexed by its more important neighbors (see the Dakotas, Kansas, Nebraska, Delaware, Iowa, Idaho, Wyoming, etc.).

I'm not criticizing the strategy. In fact, it is a perfect strategy if you want to score big in November. What I have an issue with is the constant evocation of the founding fathers, and the assertions that the regular American, characterized by the lumberjack/plumber/handyman/truckdriver/tanned Ohio Representative(See John Boehner), are making about them. Somehow the vision of the Founding Fathers prefers the principles of one CONTEMPORARY political party over another.

Making speculative statements about the Founding Fathers with the obvious contemporary bias is falling into the trap of Revisionist History. This only shows that the person making the mistake is unbelievably principled, but also unbelievably ignorant.

The use of the Constitution and the Founding Fathers as a way to justify political stubbornness is flat out wrong. I don't negate this view with the belief that I have the same clairvoyance about the founding fathers as conservatives seem to think they possess. I do it from a purely historic standpoint. If you know a single shred of information about the Constitution and Constitutional convention, you would know that the Constitution is nick-named a "Bundle of Compromises" for a reason. Here's a history lesson:

States with less population endorsed the New Jersey Plan, which would have given every state equal voting power in the bicameral legislature. The Virginia Plan, which was endorsed by larger states, would have apportioned the two houses by population or taxes paid. Eventually, the Connecticut Compromise was drafted which formed the House of Representatives, based on population, and the Senate, with equal representation for all states.

The reason the document took so long to draft was because of the already forming ideological and sectional divide between Southern (primarily agriculture) states and Northern (budding industrialists) states. Apportionment was just one topic that was compromised over. Some others included: Slave Trade (Int'l Trade outlawed in 1808), Representation (3/5ths Compromise) and powers delegated to each branch. The first 10 Amendments to the Constitution (The Bill of Rights) were mostly written as a Compromise to states-rights followers of Thomas Jefferson in order to get them to agree to signing a Constitution with a Federal Government.

Beyond the ratification of the Constitution, figures who were contemporaries of the Founding Fathers became famous for having debates over the age-old problem of Federalism versus States Rights. These differences led to the creation of the Compromise of 1820 (Missouri Plan), The Mason-Dixon Line, Popular Sovereignty and the Compromise of 1850. One of the most iconic Senators from the 19th century was the "Great Compromiser" Sen. Henry Clay (Kentucky). He helped broker the 1820 compromise and stopped the first major secession attempt by Sen. John C. Calhoun in South Carolina over a tariff (see Nullification Crises). Politics was still a partisan and heated debate during the antebellum era, but it was also characterized by the idea of preserving the Union and its principles above all, even if it meant compromising on your beliefs.

UCLA: It’s Time to Clear House

I read Bill Plaschke’s Article Saturday night and hung my head in disbelief. Irrelevant little Bruins indeed. Just like Coach Neuheisal, I will always remember the Stanford game, 2010. It wasn’t the interceptions and the fumbles, or the lack of defense that got me down. It was the feeling of disbelief – that burning question: how did we get here?

The 2005 “Beat SC Bonfire” was my introduction to UCLA football. “Beat SC Week” was scheduled for the week before finals, giving us a nice catharsis. The tower burned, the insults flew, the Trojans hung and the troops were rallied. Karl Dorrell, our fearless leader stood in front of the inferno pumping his fists and leading numerous 8-claps. Then, like a mystic hero, Maurice Jones-Drew took the mic and the crowd went haywire. Although we suffered a humiliating loss to SC that year, our 10-2 record stood was nothing to be disappointed over.

We had momentum going into 2006. Although we barely broke even that year, we did the impossible. We upset #2 ranked USC 13-9. Like the aforementioned Stanford game, I will always remember where I was when we beat USC. We rioted, cars were torched and fans were maced, all in the supposedly quiet Westwood.

The next season, we made the Las Vegas Bowl, but went 6-7. But, no lackluster season goes unpunished – Dorrell was fired.

Those were the days.

It went downhill from there. Relatively unknown former UCLA MVP quarterback Rick Neuheisal was hired to replace Dorrell, and former Trojan Norm Chow took up Defense. Redshirt Junior Kevin Craft was chosen for starting quarterback, and the worst season in my four years at UCLA began. Craft ran more than he could throw and when he did throw, he had more interceptions that completions. He ignored Neuheisal, and made up plays on the fly. We went 4-8 that season with another humiliating loss to USC. That was my senior year. Nice way to say goodbye.

Again, no lackluster season goes unpunished. Craft lost the starting quarterback position to Kevin Prince, a perpetually injured Crespi High School alumni. Neuheisal started the season with a promise: a 6-6 record and a bowl berth. He fired up the troops and we rushed into the 2009 season 3-1 with wins against Tennessee, Kansas State and San Diego State. We were unstoppable. That is, until we started playing against Pac-10 teams. We went 0-4 in October, lost a 5^th game to USC, but held on to beat Washington, Arizona State and Washington State. Neuheisal made a promise and he delivered. We were 6-6 and were invited to the Eagle Bank bowl in Washington, DC, where we beat Temple University.

Our current team is a mix of rookies, the always-injured Kevin Prince at quarterback and the sensational Kai Forbath at kicker. But, when I watched Prince go 9/26 against Kansas State, and experienced our Washington-State-like effort against Stanford, I could not help but wonder: Why do I miss Karl Dorrell so much?

Maybe it’s time for the UCLA to do some soul searching, and clear house. Neuheisal is failing and Chow isn’t helping. Our most effective offensive player is Forbath at kicker. And, with the 7^th hardest schedule in the entire BCS system, we are destined to go into October 0-5. If we don’t act soon, UCLA might become Pac-10 irrelevant, and The Pac-10 doesn’t need 2 Washington States.

9/11+9

If you were alive during Pearl Harbor, you experienced a nation, shaken to core, and ready to unite against the Imperial forces of Japan. 2,400 soldiers and civilians died, making it the worst attack on U.S. soil. The attack that pushed the U.S. into World War II also created an era of unity that saw families cut back on consumption, women working in munitions factories and assembly lines and a general feeling that a strong home-front would help our boys overseas. For historians, the 20th century became divided between the pre and post-war eras. World War II led to the Cold War, which spawned many proxy wars that make the U.S. the policing force it is today. But, it also led to paranoia and suspicion that caused the internment of over 100,000 Japanese-American citizens.

The attack on the World Trade Center in 2001 had the same effect on the era. For those who experienced the attack, and the subsequent expansion of Intelligence and Domestic/International security know the 21st century as the pre and post-9/11 world. I can vaguely remember airport security before 9/11, and I do remember a government devoid of any office called "Homeland Security." 9/11 not only exposed to the United States to the effects of interventionism against the Soviets in Afghanistan, but also re-introduced the idea of Radical Islam and Terrorism into our lexicon. Those who even considered cutting defense budgets were accused of being either soft on terrorism or not supporting our troops overseas. It was a post-Cold War era governed by poorly disguised Cold War policy.

9/11 put the U.S. into a war against the Taliban in Afghanistan, which has turned out to be the longest in U.S. history (9 years and counting). 9/11 created the "War on Terrorism" which spawned the proxy Iraq war. While we have effectively pulled out all combat troops from Iraq, we still have a lot of nation (re)building to do. The eight years of the Bush Administration were defined by his response to 9/11. His policies tarnished America's image in most of the international world. Constitutional questions in regards to everything from warrant-less arrests to wiretapping to prisoners of war were reopened and quickly co-opted by politicians. Most importantly, 9/11 created a world of suspicion, paranoia and fear that was manipulated to spread religious intolerance and indifference to violations of civil rights.

My question, as a historian (BA, UCLA, 2009) , is how we will frame the post-9/11 world to those who were or will be born after 9/11/2001. Moralists and revisionist historians might talk about the post-Pearl Harbor era as a dark time in U.S. history where bigotry disguised as "national security" led to the internment of Japanese-American citizens. That may be true. But, being someone who was born 46 years after Pearl Harbor, I see the event in its context: a country reacting to an attack on its soil and preparing to fight a war. While the unfortunate internment did occur, we must teach Pearl Harbor in its context without using our contemporary moral filter. What was the cause of the Japanese attack? What was the U.S. response? What were the events that led the Roosevelt Administration to intern so many civilians? These types of questions will help teach the historical legacy of Pearl Harbor without injecting our own biases.

Like Pearl Harbor, the post-9/11 world was a product of a county reacting to an attack on its soil and preparing to fight a war. Like Pearl Harbor, it also produced bigotry towards a U.S. minority, Muslims. But, how will we teach this era of transition in the future? The same way we teach Pearl Harbor and the WWII era. We should instruct on the causes of the attacks, the response to the attack and the political, social and cultural environment that was created by the attack. Teachers should talk about how the United States changed in the face of adversity, and how everyone from the President of the United States to a minister in Florida reacted to the attack and the environment it created.