Quotes from the '70s

Bona fide obligation of contracts

Strong, J. (maj. op.) Olcott v. Fond du Lac County, 83 U.S. 678, 690 (1872)
This court has always ruled that if a contract when made was valid under the constitution and laws of a State, as they had been previously expounded by its judicial tribunals, and as they were understood at the time, no subsequent action by the legislature or the judiciary will be regarded by this court as establishing its invalidity. Such a rule is based upon the highest principles of justice. Parties have a right to contract, and they do contract in view of the law as declared to them when their engagements are formed. Nothing can justify us in holding them to any other rule.

Limitations of a republican State

Miller, J. (maj. op.), Citizens' Saving & Loan Ass'n v. Topeka 87 U.S. 655, 662-63 (1874)
It must be conceded that there are such rights in every free government beyond the control of the State. A government which recognized no such rights, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism. It is true it is a despotism of the many, of the majority, if you choose to call it so, but it is none the less a despotism. It may well be doubted if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness, and the security of which is essential to that happiness, under the unlimited dominion of others, whether it is not wiser that this power should be exercised by one man than by many. The theory of our governments, State and National, is opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments are all of limited and defined powers.

There are limitations on such power which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name. No court, for instance, would hesitate to declare void a statute which enacted that A. and B. who were husband and wife to each other should be so no longer, but that A. should thereafter be the husband of C., and B. the wife of D. Or which should enact that the homestead now owned by A. should no longer be his, but should henceforth be the property of B.

Tax for private use is theft

Miller, J. (op. cit.)
To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law and is called taxation. This is not legislation. It is a decree under legislative forms. Nor is it taxation.

Courts are not the guardians of unenumerated rights

Clifford, J. (diss. op.) Citizens' Saving & Loan Ass'n v. Topeka
Courts cannot nullify an act of the State legislature on the vague ground that they think it opposed to a general latent spirit supposed to pervade or underlie the constitution, where neither the terms nor the implications of the instrument disclose any such restriction. Such a power is denied to the courts, because to concede it would be to make the courts sovereign over both the constitution and the people, and convert the government into a judicial despotism.

Should history textbooks instill "a sense of pride"?

This L.A. Times commentary makes the grade.

PC textbooks full of skewed history

California has tinkered with the past in a foolish attempt to make students feel good about themselves.

By Diane Ravitch, DIANE RAVITCH is a historian of education at New York University, a senior fellow at the Hoover Institution and author of "The Language Police: How Pressure Groups Restrict What Students Learn."
May 16, 2006

TWENTY YEARS AGO, I was invited by then-State Superintendent of Public Instruction Bill Honig to join a committee to revise California's history curriculum. Over 18 months, we produced a document that added more time for the study of American and world history and called for the teaching of the dramatic controversies that make historical study engaging and honest.

Immediately, however, a wide variety of religious, racial and ethnic groups demanded changes in the document to recognize and honor their history. Blacks, Jews, Native Americans, conservative Christians, Arabs, atheists, Armenians, Poles and others lined up to complain at public hearings about references to their groups.

What made their complaints powerful is that California, unlike any other state, has mandated by law since 1976 that instructional materials used in the schools must provide positive portrayals of specified groups.

When it comes to males and females, for instance, the Legislature decreed that "equal portrayal must be applied in every instance." That means, among other things, that an equal number of male and female characters must be depicted in "roles in which they are mentally and physically active, being creative, solving problems … " and that male and female characters in textbooks must show a "range of emotions (e.g. fear, anger, tenderness.)"

California's textbooks and other materials must instill a "sense of pride" in students' heritages and may not include "adverse reflection" on any group. Cultural or lifestyle differences may not be portrayed as "undesirable." Members of minority groups must be shown "in the same range of socioeconomic settings" as those in the majority.

And it's not just gender and ethnicity that is "protected." Older people, people with disabilities and people who pursue various occupations have been written into the law.

So it's not surprising that in recent months gays and lesbians have stepped forward to demand a place at the state's capacious table. They too want their roles to be portrayed positively in textbooks purchased by the state. And frankly, they've got a point. In view of the state's broad inclusion of every other group in its list of those deserving such treatment, the state has no principled reason to exclude any new claimant.

Just a few months ago, Hindu organizations appeared before the state Board of Education complaining that they were offended by references to their religion in the history textbooks — including descriptions of the caste system and depictions of the treatment of women (one group wanted a reference to the fact that women had "fewer" rights in ancient India changed to say that women had "different" rights). Even though scholars insisted that the historical references were accurate, the organizations objected that their religion had been subjected to an "adverse reflection."

Because of its social-content guidelines, California will never see an end to these rancorous debates about who wins recognition in the textbooks. And each time, whatever California decides will have a huge effect. Because California contains nearly 12% of U.S. school enrollment, every major textbook publisher tailors its products to meet the state's specifications and then sells that product in other states.

It is time to recognize that the problem is not the nature of the group demanding inclusion, but the fact that the state has arrogated the power to dictate how textbooks should be written.

The state's social-content guidelines should be abolished. They put the state Board of Education into the absurd position of deciding which facts are historically accurate and which should be included or excluded, a responsibility for which it is manifestly unqualified. The guidelines are an open invitation to interest groups to politicize textbooks.

Telling publishers that their books must instill pride only guarantees a phony version of feel-good history. Publishers, as a result, bend over backward to be positive, whether writing about the genocidal reign of Mao Tse-tung (presumably to avoid offending his admirers) or the unequal treatment of women in Islamic societies (to avoid offending Muslims).

Certainly, textbooks should accurately portray society in all its complexity. But to impose contemporary political requirements on how the events are portrayed only ensures that the history we teach our students is inaccurate and dishonest. History books have already grown larger and duller to accommodate every group's demands.

What the state should expect of publishers is that they produce books that are as honest and accurate as possible. Such narratives would be far likelier to instill humility, a recognition of human folly, an understanding of conflict and differences and a sense of our common humanity rather than a sense of pride.

From Rosenberg to Schiavo

William Orville Douglas is remembered as a liberal justice on the Supreme Court, a maverick on the post-FDR Court. Perhaps our history since his heyday has belied the constancy of a term like "liberal". The year-old case of Terri Schiavo, a brain-damaged wife whose life ebbed away because of her husband Michael's petition to remove her feeding tube, was hailed by liberals as a victory for self-determination and the discretion of family members against a prying government. The Supreme Court on March 24, 2005 refused to grant a stay of enforcement.

A major question was whether Terri's life should be upheld even though there was hearsay evidence that she had, prior to her brain injury, not wanted to be kept alive in such a helpless state. Was this hearsay evidence sufficient?

In his autobiography Justice Douglas recounts from his 36 years on the high court his experience with an earlier but reminiscent situation.

________________________________________________________

The Rosenberg Case

"Joseph McCarthy flourished for about a year after Eisenhower became President. It was during this time that the Rosenberg case arose. Julius Rosenberg and his wife, Ethel, were prosecuted for espionage on the charge that they had procured atomic secrets for Soviet Russia. They were convicted in a New York federal court and sentenced to de_th. Their convictions were sustained by the Court of Appeals, and the Supreme Court denied certiorari, Mr. Justice Black and I voting to grant.

In June 1953, as the Court was about to adjourn for the summer, new lawyers entered the case and applied to the Court for a stay of . Emanuel H. Bloch, counsel for the Rosenbergs, had never raised the question as to the impropriety of the de_th sentence because the conditions specified in the intervening Atomic Energy Act of 1946 had not been satisfied.... When it came to us in June 1953, it was a brand-new issue never once raised previously in the protracted litigation.

....One Edelman was the "next friend" who... filed a writ of habeas corpus in the Rosenberg case, accompanied with a motion for a stay. I did not grant the writ, only the motion; and it was my motion that the entire Court considered when it met in Special Term on June 18.

....I call the ambiguity in the act the "key" point as far as the de_th penalty was concerned because of what Judge Jerome Frank later told me. It was he who wrote for the Court of Appeals sustaining the convictions in 1952. He said that the "key" point had never been raised prior to the "next friend" application to me and that if my stay had not been vacated and my ruling had reached the Court of Appeals, as it would have, there was no doubt that the Court of Appeals would have held that the imposition of the de_th sentence was improper.

Deciding on the Motion

The practice in processing an application for a stay is to refer it to the Circuit Justice, who in this case was Jackson. But the lawyers, hearing that I was leaving the city for the Far West the next morning, presented the application to me, as this was Tuesday and the Rosenbergs were to die on Thursday. This was, in other words, the last chance to present the application to me....

I accordingly set down the application for a hearing in my chambers. That was Tuesday, June 16, 1953. After hearing the oral argument, I was deeply troubled. The point presented had never been considered by any court that reviewed the case. It was briefly the following: the Rosenbergs were charged with a conspiracy that ran from 1944 to 1950. At the time the conspiracy started, the relevant statute, the Espionage Act of 1917, provided for the de_th penalty. In 1946, while the alleged conspiracy was still under way, Congress, to ameliorate the punishment, amended the law in the Atomic Energy Act so as to make the de_th penalty applicable only in case the jury recommended it. In the Rosenberg case the jury had made no such recommendation; and the trial court had proceeded on the ground that only the original act was applicable. So the question was analogous to the case in which, while a burglar was entering a house, the penalty for burglary was lightened. Which penalty should be applied, the heavier or the lesser one?

The Rosenberg case was an aggravated application of that principle, as human lives were at issue. (It is elemental law, in Continental Europe as well as in the Anglo-American world, that any ambiguity in a law should be resolved in favor of life, not against it.) The problem was, theoretically speaking, interesting, but what made it loom large was the fact that the incriminating evidence against the Rosenbergs, as revealed in the record, were events happening after the 1946 amendment that ameliorated the punishment.

“A Powder Keg”

Washington was a powder keg. Pro-Rosenberg pickets were picketing the White House; and anti-Rosenberg pickets were picketing the pickets. A crowd was milling around the Supreme Court building. Our police told me that two hundred newsmen and photographers were inside waiting for me. At one o'clock in the morning I went out a back door and drove my car to Fred Vinson's apartment. After I told him I had almost decided to issue the stay, we talked for an hour. He tried to dissuade me, and I finally decided to sleep on the matter and come up with a decision in the morning.

I took a hotel room and slept late. Before noon the next day (Wednesday, June 17) I issued the stay and left town by car for the Far West. Before I left Washington, while I was still considering the stay application, I had received a telegram from my hometown of Yakima which stated the mood of the country: "If you grant the Rosenbergs a stay, there will be a l_nching party waiting for you here." I had wired back: "If there is to be a Yakima l_nching party you'll have to furnish your own whiskey."

My first stop was to be Collinsville, Illinois.... I had left the Chief Justice a memo telling him the route I was following and my destination. I was on that route when dusk overtook me not far south of Pittsburgh. I saw a motel, stopped and registered, and while I was moving my bags inside I had the car radio on, listening to a symphony. Suddenly the music stopped and a voice announced that the Chief Justice had called a Special Term of Court for noon the next day to review my stay of .

I called my secretary, Mrs. Edith Allen, at once to see if the news was correct. She told me it was, and on inquiry advised me that Vinson had never tried to reach me, as he easily could have by alerting the state police of Pennsylvania. An eight-man Court would sit the following day to review my action! I told Mrs. Allen to inform the Chief that I'd be there."

The Court Years: 1939-1975, pp. 79-81.

_______________________________________

There are obvious differences between Schiavo and Rosenberg. The Rosenbergs' punishment was a government action and directly controlled by 5th Amendment due process. Schiavo was not a criminal, which means she had more rights than the Rosenbergs. The similarities, however, are plainer than the differences. There was major public outcry from both sides as the Supreme Court considered a stay. Both cases evidenced harsh animosity by those in favor of de_th. Both cases saw the triumph of that animosity. Both cases featured a fundamental ambiguity in law or in fact. And both cases sorely needed the wisdom to recall that elemental principle of law: that any ambiguity in a law should be resolved in favor of life, not against it.

It matters not how unpopular the petitioner is. For Douglas's efforts, many in the House of Representative sought his impeachment. Liberal or no, Justice Douglas has here set a precedent we ought to follow.

Luther on the Gospel

The following quotes are taken from Martin Luther's 1520s sermon entitled "Christ’s answer to the question John asked him, his praise of John, and the application of this gospel." I was listening to this sermon on mp3, and transcribed the sentences that truly impressed me.
_________

Where Christ is, there surely the gospel will be preached, but where the gospel is not preached, there Christ is not present.

Moreover, if one’s life is bad, it should be strange indeed if he should preach right. He would always have to preach against himself, which, he will hardly do without additions and foreign doctrines.

Just as God acknowledges no law besides the Law of Moses and the writings of the prophets, he makes no promises except through Christ alone…. There is no book in the Bible in which both are not found. God has always placed side-by-side both law and promise, for he teaches by the law what we are to do, and by the promises, whence we shall receive power to do it.

Extol faith and exercise love: faith receives the good works of Christ; love bestows good works on our neighbor.

Who stumbles at Christ? All who teach you to do works instead of teaching you to believe; those who hold forth Christ to you as a lawmaker and a judge, and refuse to let Christ be a helper and a comforter, torment you by putting works before and in the way of God, in order to atone for your sins, and to merit grace.

For God demands of us no other work that we should do for him than to exercise faith in Christ. With that, he is satisfied, and with that we give honor to him as to one who is merciful, longsuffering, wise, kind, truthful, and the like. After this, think of nothing else than to do to your neighbor as Christ has done to you, and let all your works together with your life be applied to your neighbor.

Is Wisdom on your blogroll?

Proverbs 8 depicts a young lady with a heart for hospitality. She also loves to teach. She lives with her sister Prudence. Miss Wisdom is building and furnishing her house, setting her table, going to much trouble, and then running out to the intersection to invite guests. She calls the simple. She calls the fools. She calls the ignorant. I did something similar when my family went to Pioneer Courthouse Square in Portland to pass out blankets and Bibles to the homeless men and women this February. Temperature was just above freezing. A friend and I accompanied Mrs. Vandermeer, going up and down streets, asking loiterers if they know someone who needs a blanket, coat, or something hot to drink. Telling them it's over at the Square. This is what Miss Wisdom does. Where is this table she's set? That's the beauty of it -- it's set every morning at 6:30 in my dining room. The Bibles are there every morning. Who are these simpletons Miss Wisdom wants to entice? Me and you.

God has a message for me and you. The problem is, we don't know to look hard for it. That's why Miss Wisdom, aka the Holy Spirit, keeps pounding the streets, and why our dads continue to get the Bibles out each morning. Do you ever get the feeling that what you're reading doesn't apply to you? Or burn inside when your sister sweetly asked how you were going to personally apply the verse you picked out? Well, there's good news on the second count. It's just you and God this time, and he's got all the time in the world to help you come up with an application. As to the first, there are several reasons the scripture might seem dry.

1. You're not really paying attention when it's not your turn to read. Your seven-year-old sister is taking ten seconds to sound out the third word in a 32 word paragraph; your other sister pinches you for covering up her page so she couldn't give out the word, take over the paragraph, or skip the names; you're looking up a cross-reference; your brother kicked your sister under the table.

2. You've been reading over the verses too fast. Sure you participated in Bible time, but you already saw these verses last year, and the part about living by the spirit and your flesh being because of sin still is about as enlightening as the motherboard to the old computer your brother dismantled last month.

3. You have all kinds of distracting thoughts. If you get right down to it, what you're imagining is sinful, but you don't know how to deal with it other than superimposing a cross, biting your tongue, and reminding yourself that "in Christ" you really aren't like that. In fact, you've gotten very good at ignoring that voice that says you should confess it to your parents and ask them to pray for you -- after all, that voice is just another emotion. You should practice self-control and purpose not to be swayed by it.

I know about all these reasons, because they have been true of me in recent years, weeks, and hours. They may be true of you as well. Examine closely what Miss Wisdom says, because these words were inspired by God. She tells us to choose her instruction over choice silver. To search for it as for hidden treasure. She also tells us how:

"Blessed is the man who listens to me,

watching daily at my doors,

waiting at my doorway." (Prov. 8:34)

Many my age have "friends" who write very cool and stimulating blogs. We subscribe to these, so we can get an annoying email every time they post anew. We also have very cool acquaintances, who occasionally post something about what they are doing or thinking, and we look forward to those emails because it brings us closer to their minds (even if they don't know it). However, unlike some of your online friends, Miss Wisdom has worthy things to say. Your parents won't ask who it is when you check up on her latest post.

Proverbs assures us that "He who finds a wife finds what is good, and receives favor from the Lord." (Prov. 18:22) There is one other verse in there that parallels that guarantee, and it is gotten by equally diligent (and exciting) means. Your parents know that when you seek wisdom that way, she says, "whoever finds me finds life and receives favor from the LORD. But whoever fails to find me harms himself; all who me love ." (Prov. 8:35-36) Subscribe to Wisdom's blog. It will bring you closer to the mind of Jesus Christ.

Now, since those three earlier problems are still up there, keeping us from making a solid connection with wisdom, I want to give some suggestions for each.

During Bible time, if you're unwittingly getting a sidetracked focus, sit up! Recall what Paul told his friend Tim: train yourself to be godly. Think of the rewards that God promises for godliness, both in this life, and the life to come. (1 Tim. 4:7-8) He, with a great cloud of witnesses, is watching you now, and so will the whole world at judgment day. Think of how you are affecting your siblings -- do you want them to act like you in two years? By then they might be bigger than you. (I've experienced this when roughhousing with my brother, who's now almost fifteen.) Daily concentration during Bible time takes an honest effort, but its rewards are just as real. It's just like the results of brushing teeth consistently. Isn't it a relief when the dentist says you have zero cavities this time? Train yourself to be focused on the wisdom in the pages.

Just as we saw in the last paragraph with Paul's advice to Timothy, God always has something to say to us. If you are struggling with something new, this is your chance to exercise a brand-new weapon. But you don't know what that weapon is unless you have it in your pack when Apollyon swoops down to the path in front of you. And you won't know how to use the weapon unless you handle it during spare moments, puzzle over it, and keep it shined. That's why you should memorize. You have to think hard about it. Romans chapter 8 appeared to have little to do with my situation until I started unhooking each sentence and replicating it in my mind. It seemed like a lot of comforting metaphysics. Chapter 7 appeared terribly depressing on the first quick read through. But when I have them memorized I can understand why I can't conquer sin without the Holy Spirit. I can agree that the wages of sin is and know what those wages look like.

Por ejemplo, tonight I reluctantly began to work on my life purpose with Mom and Dad. In the course of it, though, a long-suppressed, horrifying thought came to my mind. In the past, I have struggled with . I am so glad to be redeemed from it yet so ashamed to have given way to it, that it would be unthinkable that God would want people with the same struggle to be my field of ministry. Right? I kept pushing it out of my mind. But Mom kept asking me, "So what are you thinking?" Finally, finally I told her. It's gotten a little bit easier with practice. We discussed it more, and Dad and Mom reminded me that God equips those he calls, and his plan might not be what I think -- but the most important thing is to seek his will wholeheartedly, and find identity in him. Half an hour later, a verse came to mind, which epitomized the conversation. "You did not receive a spirit that makes you a slave again to fear, but you received the Spirit of sonship." (Rom. 8:15) I was jumping for joy. Train yourself to keep God’s word before your eyes.

The third obstacle we mentioned is unconfessed sin. It distracts us, taking at least a third of our mental RAM and blocking the way for further growth until it is resolved. Let me say first off, that if the voice is God's Spirit, it will become more effective as you read more scriptures. The Bible is full of commandments that tell us how to gain forgiveness. If you keep on ignoring them, your heart will become hard and unfeeling. By quenching God's Spirit, you are draining your own lifeblood and vitality. You are trading a lifetime of grace for a moment's pride. By writing off the temptation and the conviction as inconsequential, you are making your own personhood inconsequential -- nothing ultimate will be accessible. On the other hand, the Holy Spirit is faithful to give us opportunity to repent and to confess our sins when we humble ourselves. That grace was purchased on the cross, by a suffering that was undeserved. Ask for it.

"You, however, are controlled not by the sinful nature but by the Spirit, if the Spirit of God lives in you.

And if anyone does not have the Spirit of Christ, he does not belong to Christ.

But if Christ is in you, your body is because of sin, yet your spirit is alive because of righteousness.

And if the Spirit of him who raised Jesus from the is living in you, he who raised Christ from the will also give life to your mortal bodies through his Spirit who lives in you." (Rom. 8:9-11)

The Holy Spirit is the most immediate proof that God is real, and his salvation genuine. I realized this when I was in China to teach English. While praying in my dorm, I realized (and remarked to my roommate) that the words coming from my mouth were nothing I could have prayed if I was faking it: it was the Holy Spirit praying in me and interceding. So listen to the Spirit, and obey when he confronts you with a commandment that you don't like. Quote the commandments and promises to yourself. In fact, rejoice that you now have a new verse that applies directly to you. In my case, it has been was humbling myself to confess how I had given way to the sinful nature. With it came a new appreciation for God's love expressed through my parents, and God's grace in new fellowship with his Spirit and a desire to memorize scripture so I won't sin in the future. And while memorizing Romans 6-8, I have realized how Jesus' and resurrection apply to me. Train yourself to be spiritually-minded.

Listen to what Paul says about the call of Miss Wisdom. "Those who live according to the sinful nature have their minds set on what that nature desires; but those who live in accordance with the Spirit have their minds set on what the Spirit desires. The mind of sinful man is , but the mind controlled by the Spirit is life and peace; the sinful mind is hostile to God." (Rom. 8:5-7) Think hard about this verse. Live according to the Spirit and set your mind on what the Spirit desires. Search for wisdom tomorrow morning at Bible time. Cry aloud for understanding. Peer for knowledge about God like the poor guys who pay $450 for three days in a rustic cabin 30 miles from Grant's Pass to mine for bits of placer gold.[1] Of course they won't get rich, it’s only a retreat. But we can do it every day. That's the way to please God. It's the only way to find a pleasure stronger than sin. Do this and get life and peace. Isn't Wisdom the only blog worth subscribing to?

---

[1] “Getting to Know… Dave Rutan: Gold mining host.” The Reflector (Battle Ground, WA) p. A3 (3/22/06)

List of cases

Cases I'm currently interested in:

Note: always read the dissents. They are often more lucid, or at least more lively, especially when the majority is wrong.

Calder v. Bull (1798) - Judicial review can include natural law; ex post facto prohibition does not include property rights

Martin v. Hunter's Lessee (1816) - Supreme Court has appellate jurisdiction to review State court decisions on a federal question

Barron v. Baltimore (1833) - Bill of Rights does not apply to the States

The Slaughterhouse Cases (1873) - Privileges and Immunities clause applied to non-racial classification

Lochner v. New York (1905) - Due process includes liberty to contract and earn a living, maximum hours statutes notwithstanding

Williams v. North Carolina (1942) - Out of state, ex parte divorces merit full faith and credit

Cooper v. Aaron (1958) - States cannot nullify a SCOTUS Constitutional interpretation

Griswold v. Connecticut (1965) - Privacy rights emanating from the Bill of Rights protect contraception in marriage

Eisenstadt v. Baird (1972) - Equal Protection gives singles a fundamental right to use contraceptives; "the marital couple is not an independent entity... but an association of two individuals... If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."

Woodson v. North Carolina (1976) - Mandatory capital sentencing violates the 8th Amendment, although a previous case had struck down jury discretion

Wyman v. Wallace (Wa. Sup. Ct. 1980) - Abolished Washington's common law tort of alienation of affection

Missouri v. Jenkins (1990) - Invalidated judge-imposed taxes funding Equal Protection desegregation program (cf. full story by Cato Institute)

Harper v. Poway Unif. Sch. Dist. (9th Cir. 2006) - Freedom of speech does not protect anti-gay T-shirt message in a public school (cf. Kozinski's dissent)

Why the title?

The title you see on the site masthead is Librado en Derredor, adapted from the Spanish version of Judges 8:34.

The children of Israel... did not remember the Lord their God, who had rescued them from the hands of all their enemies on every side.

que los había librado de todos sus enemigos en derredor

This has a threefold meaning for my writings: rescued into the glorious freedom of the children of God (Rom. 8:21); from my enemies, from fear of my enemies, and from my sin; and on every side, so that the territory in every direction (Gen. 13:14-17) is the Lord's domain.

Vaya con Dios, and Happy Easter.

The difference between Griswold and Roe

In the 1965 case of Griswold v. Connecticut, the staff of a Planned Parenthood clinic argued that a State anti-contraception statute was unconstitutional, in that it violated the doctors' right to freedom of speech in giving advice to patients, and the due process rights of women to privacy in marriage. Eight years later, Sarah Weddington used the ruling here to extend the right of privacy to those wishing to end the lives of their unborn children. However, toward the end of the second day of oral arguments, counsel for the Appellants in Griswold explained how abortion laws were different.

_______________________________________________________

Estelle T. Griswold, et al., v. Connecticut

Transcript of Oral Arguments before the Supreme Court of the United States

Washington, D.C.
Tuesday, March 30, 1965

Thomas I. Emerson, Esq., for the Appellants

* * *

THE COURT: Would your argument concerning these things you've been talking about relating to privacy, invalidate all laws that punish people for bringing about abortions?

MR. EMERSON: No, I think it would not cover the abortion laws Or the sterilization laws, Your Honor. Those--that conduct does not occur in the privacy of the home.

THE COURT: There is some privacy, as a rule, and the individual doesn't generally want it made known.

MR. EMERSON: Well, that aspect of it is true, Your Honor. But those are offenses which do not involve the type of enforcement apparatus as to what goes on in the home that this--

THE COURT: Part of it goes on in the home, undoubtedly.

MR. EMERSON: Part of it does, Your Honor. But the conduct that is being prohibited in the abortion cases takes place outside of the home, normally. There is no violation of the sanctity of the home.

THE COURT: Well, apart from that, Mr. Emerson, I take it abortion involves a life in being, doesn't it? Isn't that a rather different problem from contraception?

MR. EMERSON: Oh, yes, of course.

THE COURT: And isn't it different in the sense of the State's power to deal with it?

MR. EMERSON: Oh, yes. Of course, the substantive offense is quite different here.

THE COURT: Are you saying that all abortions involve k.lling, or murd.r?

MR. EMERSON: Well I don't know whether you need characterize it that way. But it involves taking what has begun to be a life.

THE COURT: But the State thinks each of them is wrong, and it passes a law to forbid it being done. It relates to a pretty closely analogous situation.

MR. EMERSON: Yes, Your Honor. But that case is different from this situation because in the abortion cases Connecticut does not apply this moral principle. It is the use of an instrument to prevent birth taking place. But they do not apply the moral principle that it can never be done. In Connecticut, abortion is allowed where it is necessary to save the life of the mother or the child. So that the basic moral principle that Connecticut is trying to enforce here, they simply pay no attention to in their abortion laws. It's a completely inconsistent application of the principle. They don't take it seriously in the abortion cases, only in contraception cases.

Immigration Reform: it's more important than ever

Moderate abolitionists thought it dangerous to have free Blacks in the United States, so they tried sponsoring (voluntary) deportations to Liberia. Oregon's 1859 constitutional ratification contained a measure to keep all free Blacks out of the state. Yes, I think American Blacks did some good in Liberia. Of course they were illegally brought here in the first place. But the cultural, economic, and moral issue was much more complex than we thought -- and it was largely our fault.

The same is true with Mexican immigration today.

I agree that much of the rhetoric associated with immigration debates today is emotional. But if it were just a cold matter of law rather a political opportunity, it ought to unite Democrats and Republicans: after all, who doesn't want liberty, justice, and people staying where they belong?

History
However, these emotions are grounded in substantive issues, which for those detrimentally affected (nearly everyone BUT the politicians), make the immigration status quo fundamentally wrong. For one thing, seasonal migration is a cultural way of life for thousands of Indians in Mexican states like Oaxaca and Chiapas. They have been crossing the border to work on ranches and pick fruit since the 1850s, and especially since WWII. http://www.pbs.org/kpbs/theborder/history/timeline/17.html

Mexico owned Texas until the 1836, California until 1848, and parts of Arizona and New Mexico until the Gadsden Purchase of 1853. Santa Fe especially was a big-time Mexican trading city. This huge area included the missions, which the U.S. seized until President Lincoln gave them back to the Catholic church.

As far as mass labor goes, U.S. farms, railroads, and mining companies contracted mainly with Chinese people in the 1850s. Then when Sinophobia won out, Japanese were hired. A lot of them came over as well, as one can see from the size of WWII internment camps. Mexicans, however, were seen as less foreign, and as valuable workers. Especially since the 1910 Revolution, Mexicans have been coming North for reasons similar to today's.

It's partly our fault not only because Americans asked them to come and now don't want them, but because we have been so indolent in coming up with a lasting and integrated framework for channels to accommodate the need of and for immigrants.

That's the cultural and historical aspect. I argue from this that a close examination of the practical effects of our current immigration policies shows shortsightedness, bureaucratic waste, and impracticality.

Economics
But as to the economics, following is my perspective -- not only as a student of law and constitution, or former resident of San Diego County, but also as the son of a berry farmer in the Pacific Northwest.

As beneficiaries of economic freedom, we ought to know that incentives work. The reason people come across the border has to do with economics. Work according to market forces, and enforcement of the laws will be much more efficient. The only exception to this ought to be where the crime is malum in se, and in that case, the general population should normally be in favor of the law and will cooperate in its enforcement – and if not, they will vote in opportunists to repeal the laws.

The Example of Environmental Regulations
This principle is seen, e.g., in the EPA approval process for new pesticides/herbicides. The EPA conducts lengthy investigations of the efficacy of chemicals necessary for producing the quality fruit in the grocery store. However, the Agency's view of the situation is divorced from practical reality. Farmers know certain chemicals work, and as long as they are safe, should be allowed to use them. However, because this labeling decision is in the hands of a bureaucracy, the consumer suffers unless farmers (illegally) use unlabeled products. The production advantage these farmers have over law-abiding growers, as well as the advantage of foreign importers who operate under more lenient regulations, makes it difficult to compete under the law. As more growers operate as a matter of fact outside the law, the demand for the necessary labels dies down. Thus, the bureaucratic process is self-defeating, and loses the people's respect. All this could be avoided if the labeling process was reformed and fast-tracked. The same holds true for immigration.

The Very Cost
We need to realize how much Mexican immigrants are a benefit to us, and us to them. Farms all over the USA have no option of harvesting their fruit other than seasonal labor. Did you know that in most years, it is difficult to find a consistent, reliable supply of workers to pick berries during June and July? It is even harder without having one's own labor camp.

Without this supply of workers, America will actually be less secure in the long run. Less people may cross the border, but more products will come. They will be coming one way: in. Most of the complaints now heard about Saudi oil or Chinese manufacturing will be true of Chinese and South American produce (except for price):

• Human rights violations
• Low wages
• Foreign dependency
• Trade deficit
• Poor consumption quality

A whole system of irrational laws, including minimum wage, free trade, AND complicated immigration procedures must be reformed before consistent enforcement will turn out as an overall benefit to the American public.

In fact, I know personally that unless a migrant worker is paid in cash, his income tax, Social Security, Medicare, workman's comp, and other withholdings will be withheld from his paycheck. Because most of the migrant workers are not US citizens, and often don't have genuine documents, scores of thousands will never receive Social Security checks, or any of the other benefits they pay taxes. Where is the injustice now?

Enterprising and creative doers can create jobs for those now unemployed who are willing to learn and work. The 21st century should not be a repeat of the anti-Chinese policies of the mid-1800s. Rather, in the words of Dr. Benjamin Franklin at the framing of the Federal Constitution (Aug. 9, 1787),

"When foreigners after looking about for some other Country in which they can obtain more happiness, give a preference to ours it is a proof of attachmentwhich ought to excite our confidence & affection."

Fast-tracked immigration reform is necessary before enforcement will be a benefit. It will also increase respect for law.