The Other Supreme Court Ruling

I have a few brief words to share about the newest Supreme Court ruling as we steel ourselves for the judicial outcome of health care.

Today the Supreme Court ruled that strip searches are permissible in arrests for any offense, even minor ones. The argument is that a strip search is not an unreasonable search and seizure and therefore not in violation of the 4th Amendment. In addition, the majority opinion argued that the court does not have the authority to regulate this type of activity, leaving many state laws in opposition to the federal norm in place.

The minority opinion, in addition to asserting that these strip searches are indeed a violation of the 4th Amendment, argues that strip searches violate the right to privacy - the plaintiff in this case and Justice Stephen G. Breyer, who wrote the minority opinion, spoke of unconstitutional humiliation. However, the majority opinion disagreed.

That is what really worries me. If the decision is about limiting the right to privacy, then this case may be setting up precedent to offset Griswold v. Connecticut and the more famous Roe v. Wade, the leading cases establishing the judicially accepted constitutional right to privacy in the context of birth control and abortion rights. Perhaps this is the true goal of the conservative court, to pave way for a legal justification for the overturn of those controversial decisions. If so, this ruling may have much deeper political ramifications than first meets the eye.

Not Your Average Product

I go back and forth about this issue: is the health care law currently in the Supreme Court constitutional or not?

The answer, as I see it, boils down to an argument not being made to the justices. If access to health care is an inalienable human right, like that of free speech or property, then the law is within Congress's authority to pass. Otherwise, it's difficult to say if it's within legality, but I'm leaning towards not.

First let me be clear that I do believe health care is a human right and therefore national health care is a good idea. However, I also believe in the final say of the United States Constitution, so I'm at odds with myself.

Second, I strongly feel the court should not be even hearing this case. This is the only aspect of the proceedings I am sure about. A grievance cannot be taken to court without something to grieve, specially so far tax laws. The legislative mandate on trial would force a tax penalty on anyone who does not purchase or have health insurance. Until someone is hit with that tax there is nothing to petition against, and therefore the court should not hear the case until 2014 when the tax penalty first goes into effect. The justices claim this tax penalty is not a tax law and therefore gives them jurisdiction over it now, and I don't understand the argument.

However, that point is almost irrelevant since the law's constitutionality won't change between now and when the first tax penalty is levied. So the real question is, where does Congress get the right to force people to buy health insurance? The tax penalty is easy: Congress has the right to "lay and collect taxes, duties, imposts, and excises, to pay for the debts and provide for the common defense and general welfare of the United States" (Article 1, Section 8, Clause 1). However, since this tax's purpose is to penalize those without health insurance, the right to tax is not on trial here. Congress is using its taxation power to regulate health care. Is that within its rights?

Health regulation is not explicitly mentioned in article 1 of the Constitution, so Congress invoked the vague "commerce clause" (Article 1, Section 8, Clause 3) which allows it to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Originally seeming to refer to money exchanges, very quickly commerce received a wide interpretation from early courts, starting with Gibbons v. Ogden where Chief Justice Marshall argued that commerce is not just trade and traffic but "intercourse" between two states. The only aspect of commerce that is untouchable, then, is something that goes on solely within the borders of one state without affecting the others in any way. This clause with Chief Justice Marshall's influential decision allowed Congress much regulatory power, including that over highways, the Internet, and even the air - the Clean Air Act was argued to be interstate commerce because car pollution travels from state to state, therefore making it a federal issue.

Health care is certainly something that takes place in more than one state, and, as the law's defenders argue, if everyone in the United States uses it, then they would have the power to regulate it under the commerce clause. However, does Congress have the right to force a person to buy it? Is this kind of regulation within its power? As Scalia wryly said on the second day of oral arguments, could Congress then force people to eat broccoli, since food is also an essential item everyone uses in every state?

(Before I go on, I would like to point out on a brief aside that taxpayers essentially are forced to buy specific food thanks to sweeping subsidies for corn, and because of these subsidies nearly everyone is force to eat corn because corn products have worked their way into almost everything we eat - although it is indeed possible, while difficult thanks to these subsidies, to live a corn-free existence. However, besides this being an imperfect analogy, I don't like comparing law making I dislike - corn subsidies - to legislation I do like - health reform. Just because something is legally possible doesn't make it desirable. The opposite is true, too.)

So it all boils down to this: is health care a product or not? If health care is a product then a mandate to purchase it would be like forcing someone to buy a brand name for the sake of public good, whatever the excuse for that might be - broccoli because it "promotes general welfare" by forcing people to eat healthier, I suppose.

But if we can acknowledge that health care is more than a product then the law may just be constitutional. I've argued before that essential services such as health care, education, food, and basic services (such as sewage) do not and should not function in the free market the same way as other products and when they are treated like products people suffer. I won't get into this research now - that's a whole other discussion.

Perhaps we can think of health care as belonging to the rights of "life" part of "life, liberty, and property" that are guaranteed in the 5th and 14th amendments. If so, then the individual mandate to purchase it can be construed to be in violation of the "liberty" and "property" parts by threatening financial penalties.

In conclusion, this law's constitutionality is a tough call. There are a lot of legal issues at play here having to do with a lot of case law history I can't wait to read more of. For now, all I can hope for is what's best for both people's health and for the balance of power as outlined in the Constitution.

Hypothetical Trayvon Martin

Recently information has come out about George Zimmerman, the man who shot and killed Trayvon Martin about a month ago. It’s been said that when he arrived at the police station he was bloodied and he claims this is because Martin assaulted him in the street. Other details have also been circulating, like Martin’s suspension from school because his backpack hadtraces of marijuana, that are so irrelevant to the issue at hand that the only explanation I can think for their release is an asinine attempt to discredit Martin’s character. Likewise is Geraldo Rivera’s opinion that wearing a hoodedsweatshirt is asking for it, sounding strikingly familiar to the laughable argument that rape is the woman’s fault, not the perpetrator – logic that, taken to its extreme, excuses mad gunmen from killing anyone in a hooded sweatshirt or raping any woman wearing a skirt.

 

As far as the allegations that Martin assaulted Zimmerman and prompted him to fire in self-defense, I just can’t see how they could be true. Why would the information come out after the federal investigation, after hundreds of thousands of marches all across the country, after the Miami Heat took a team photo in their hooded sweatshirts in solidarity, and especially after President Obama told the world that if he had a son, he would look likeTrayvon Martin? Obama’s personal speech about Martin is particularly surprising. As I’ve mentioned before, Obama has steered clear of racial rhetoric, but in this case he used a racial connection to make a strong point. Only to be made a fool later because of Zimmerman’s police report coming in a month late? Obama is too calculating for this to be true. He would never have made that personal speech for the Trayvon Martin some want us to believe he was.

However, let’s play the “what if” game for a moment.

1.     What if Martin really had assaulted Zimmerman in the streets? According to the Stand Your Ground law that allowed Zimmerman to fire his gun at someone acting “suspicious,” Martin would have been entirely within his rights. Records of the cell phone conversation he had while Zimmerman was stalking him (recordings that discredit Zimmerman’s previous accounts of the incident) show that he was being followed and made to feel unsafe by the man’s suspicious activity. Therefore, if Martin had decided to attack this stalker – which I highly doubt he did – he would have been acting in self-defense under this law. It doesn’t make the hypothetical assault excusable, but it does make it legal, and it provides a valuable example of how Stand Your Ground laws are not beneficial.

2.     What if Martin really was a delinquent drug seller and user with a violent history? Does that excuse Zimmerman’s shadowing him and killing him? Of course not. Zimmerman was not a detective or a police investigator. He was not trailing Martin because he saw someone with a criminal past; it was because he saw a black teenager wearing a hoodie. Even if he had known of this hypothetical delinquency, why does he have the right to shoot him and kill him without due process of law, without a trial of his peers? Basically, under Stand Your Ground laws gun owners can execute anyone for the crime of being “suspicious,” which is a grievous violation of the Constitution. Even terrible hypothetical Trayvon Martin deserves due process of law before being sentenced to death, especially if his only crime is appearing like a potential criminal.

3.     What if everything were true, that Martin wastaking a break from all the drug dealing and bus driver assaulting and puppy torturing in order to beat up some guy who happened to be following him down the street? Does that make Stand Your Ground laws okay? No way José. If Zimmerman really killed this horrible not-Trayvon-Martin-hypothetical-person in self-defense as he now has decided to claim, that would not be an example of the Stand Your Ground Law in action. It seems to me that the main goal of whoever has been portraying Martin so maliciously is to take focus away from the injustice of Stand Your Ground laws. 2^nd Amendment activists must be terrified that people have realized that George Zimmerman are allowed to assassinate the other Trayvon Martin, the non-hypothetical Trayvon Martin, with Stand Your Ground’s legal protection. Right now Trayvon Martin the symbol represents everything wrong with Stand Your Ground, a disaster for the NRA. But now we know about these abusive laws, and even if Travon Martin really was hypothetical Trayvon Martin we know what these laws have the capacity to do to real Trayvon Martins.

In other news, Berkeley trumpeter Khalil Shaheed passed away on Friday, March 23. He was one of my first teachers at summer jazz camp, a beautiful player and a more beautiful person. He will be sorely missed.

Also, a bit of housekeeping for you email subscribers out there: sometimes it seems that my emails end up in the spam folder. Ugh, it’s a real drag. Mark one of them not-spam and the problem should be solved, so you’ll get to read every bit of pompous opinionating I’ve got.

And finally, the paperback for A Torn Page, the literary anthology where my short story “Cliché Central” appears, is now available on Amazon.com. It’s cheap – grab a copy!

Expressive

Today I have three art-related pieces of news to share with you all, dear readers:

1) The paperback for A Torn Page, the literary anthology that includes my short story "Cliché Central," is now available in paperback in addition to its digital form released a couple days ago. It's inexpensive and educational, so go out and make our economy proud!

2) I have done something long overdue: rerecorded the vocals and remixed my song "JB's Unfulfilling Life," which you can listen to below in its new, glorious form. It was about time I let my friend Greg Englar, who rocks out on the guitar at the end of the piece, get the day in the sun he deserves. You can listen to it below by clicking on the little triangle. I also revamped "Fenomen" for the umpteenth time, which you can find by clicking here.

JB's Unfulfilling Life (ft. Greg Englar)

3) A couple days ago I finally exercised the lens I just had repaired. No waterfalls this time, but I took advantage of the nice weather we've been having here in Portland and found a view of the city to experiment with (emphasis on the word "experiment"). I hope you enjoy the results below.

And there we have it, three modes of expression, all in one blog post.  It's all too much to handle. I'm going to take a nap.

A little light painting makes this tree look swallowed up by radiation.

Without my glasses on, everything becomes a blur.

The trees zoom by. Whoosh!

The Portland city skyline. Can't you see it?

Light painting in the park. See the tree trunk on the right?

Portland through my eyes. After a few minutes of taking pictures like this my transition lenses became too dark and I had to go home.

"Cliché Central" Officially Published

Hey folks, I'm here with some good news instead of my usual political ramblings and collections of waterfall photos:

My short story "Cliché Central," one of my prides and joys, is now available in published form! It is story #10 in a literature anthology called The Torn Page and is currently available as an e-book.

In addition, one of the anthology's editors interviewed me about writing and such things. The transcript of said interview can be found by clicking here. I'm proud of it, even if I contradicted myself about writing in third person. Check it out!