Pledge of Allegiance/Religion/Supreme Court

Further commentary on the pledge of allegiance

Posted on by Kenneth Ballard / 3 Comments

If you threaten to take the words “under God” out of the pledge of allegiance, you’re a secular, anti-American lunatic. Or so the Christian right in this country would have you believe.

For me, I say don’t remove the words “under God”, instead repeal the whole, freakin’ thing. Take the entire pledge out of the Flag Code, out of the United States Code. Repeal the pledge of allegiance.

It’s interesting, to say the least, how the Christian right wants to preserve something that is actually a product of socialism. I can hear the cries now, “Wait a sec, what? Socialism?” When you look at the pledge in depth, it becomes clear.

A small percentage of this country knows how the pledge of allegiance came about. It was created in 1892 by a Christian socialist, Francis Julius Bellamy. He had a cousinly relationship with Edward Bellamy, a socialist author who wrote Looking Backward and Equality. But note that Bellamy was a Christian as well. A Christian wrote the pledge of allegiance and left out the words “under God”.

Few have actually thought about the pledge of allegiance, which currently reads:

I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.14 USC § 4

Think about these words for a moment, and I mean really think about them. I’ll give you a moment. Now let’s break this down.

“I pledge allegiance”

Pledging allegiance is certainly a good thing. After all there is no reason to be a citizen of a country to whom you are not loyal. This is why the Oath of Citizenship required of all naturalized citizens includes the words “bearing true faith and allegiance”, but with reference to the Constitution, not

“to the flag of the United States of America”

Why make it a pledge of allegiance to the flag of this country? As I discussed in a previous article, this is a form of political idolatry. By pledging allegiance to the flag, you are not pledging allegiance to the country. Bellamy would have you believe that pledging allegiance to the Flag is the same as pledging allegiance to the United States, but it is not. It’s the same as praying using prayer beads, a rosary, or kneeling before a cross and expecting that to be the same as praying to God or Christ. It is not.

By pledging allegiance to the flag, you are not simultaneously pledging allegiance

“to the Republic for which it stands”

You are pledging allegiance to a symbol of the country, not the country itself. But wait a second. Pledging allegiance to the “republic for which it stands”? Doesn’t that sound like pledging allegiance to the state, to the United States of America. Why not pledge allegiance to the Constitution?

I declare and solemnly affirm that I will support and defend the Constitution of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I take this obligation freely without any mental reservation or purpose of evasion.

Our Republic is nothing without the Constitution of the United States of America. Remember that.

I remember hearing on Glenn Beck’s program numerous times how the progressive movement involves undermining the Constitution. Could the pledge have been a subtle start to that?

“one Nation”

We are a federation of independent, sovereign States, or so we were until various changes starting in the 1910s started undermining this. Arguably the first change that started degrading our identity as a federated republic is the Seventeenth Amendment (emphasis added):

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote.

Before the Seventeenth Amendment, Senators were appointed by the State legislatures. This kept representation of the people and the States distinct, but it also kept distinct the States themselves by recognizing individual State sovereignty at the Federal level.

The United States is not “one Nation”, the United States is a federation of sovereign States, sovereign States that worked together to win independence from the Crown of Great Britain, and sovereign States that must again work together to win independence from the very government the States themselves formed.

“under God”

Recall from earlier in this article that under God was not present in the original pledge, despite the fact that the pledge was written by a Christian in 1892. Bellamy also thought that the pledge would involve children all across the country in what would arguably be the largest demonstration of national solidarity and patriotism.

In fact, the original pledge didn’t even say “flag of the United States of America”, but originally read “my Flag”. It was changed in 1923 as a benefit to new immigrants to read “flag of the United States”. The words “of America” were added in 1924.

First recognized by Congress on June 22, 1942, over six months into the United States involvement in the second World War following the attack on Pearl Harbor, Hawaii, the pledge read as:

I pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation indivisible, with liberty and justice for all.

The first unofficial addition of the words “under God” came from Louis Bowman, and he was awarded an Award of Merit by the National Society for the Daughters of the American Revolution for the idea. Allegedly at a meeting of the Illinois Society of the Sons of the American Revolution on Lincoln’s birthday in 1948, he led the society in the pledge with the added words, and repeated such a trend at other meetings.

In 1951, possibly following in Bowman’s footsteps, the Knights of Columbus also started reciting the pledge with the additional words. The move was made official by the organization itself in a resolution adopted on August 21, 1952. Over the next several years, the Knights of Columbus would make several attempts to petition Congress to amend the official pledge of allegiance to include “under God”, all of which failed.

Then on February 8, 1954, at the suggestion of President Eisenhower, under guidance from George MacPherson Docherty, Congressman Charles Oakman (R-MI) introduced a bill to amend the pledge to include “under God”. It passed both houses of Congress and was signed into law June 14, 1954 — Flag Day.

“indivisible”

The idea the United States is indivisible is said to stem from words by President Abraham Lincoln. I feel, however, that President Buchanan has the best statement on the topic, when he addresses secession in his final State of the Union address:

In order to justify secession as a constitutional remedy, it must be on the principle that the Federal Government is a mere voluntary association of States, to be dissolved at pleasure by any one of the contracting parties. If this be so, the Confederacy is a rope of sand, to be penetrated and dissolved by the first adverse wave of public opinion in any of the States. In this manner our thirty-three States may resolve themselves into as many petty, jarring, and hostile republics, each one retiring from the Union without responsibility whenever any sudden excitement might impel them to such a course. By this process a Union might be entirely broken into fragments in a few weeks which cost our forefathers many years of toil, privation, and blood to establish.2State of the Union Address, 1860. James Buchannan, President of the United States

Buchanan here is stating that the individual States do not have the right to secede from the United States. Indeed the Constitution does not provide such a power, and does not deny it either. Under the Tenth Amendment to the Constitution, powers that are not provided in the Constitution are reserved to the States first, then the People. So does a State have the power to secede from the Union?

Not exactly. Congress is provided the power under Article IV, clause 1 of the Constitution to admit new States. As such, it is reasonable to conclude that only through Congress and by act of Congress may States leave the union.

So in a way we are indivisible, but not entirely so.

“with liberty and justice for all.”

All one has to do is look around to see that this is slowly no longer becoming the case, and in some ways never was to begin with. This can definitely be seen with how the pledge was treated in law, and I’m not referring to attempts to remove “under God”, I’m referring to attempts to compel students to recite the pledge.

In 1940 the Supreme Court of the United States actually backed these laws, upholding in the case Minersville School District v. Gobitas, 310 US 586 (1940), laws that required students to salute the flag and recite the pledge of allegiance. Jehovah’s Witnesses are compelled against doing such an action as they consider it a form of idolatry.

The Court reasoned in an opinion written by Justice Felix Frankfurter that the state’s interest in “national cohesion” is “inferior to none in the hierarchy of legal values”:

National unity is the basis of national security. To deny the legislature the right to select appropriate means for its attainment presents a totally different order of problem from that of the propriety of subordinating the possible ugliness of littered streets to the free expression opinion through handbills.3Minersville School District v. Gobitas, 310 US 586 at 595 (1940)

Justice Harlan Stone was the lone dissenter in the case:

The guaranties of civil liberty are but guaranties of freedom of the human mind and spirit and of reasonable freedom and opportunity to express them. They presuppose the right of the individual to hold such opinions as he will and to give them reasonably free expression, and his freedom, and that of the state as well, to teach and persuade others by the communication of ideas.4Minersville School District v. Gobitas, 310 US 586 at 604 (1940)

The Court would reverse its standing just three years later in deciding the case West Virginia Board of Education v. Barnette, 319 USC 624 (1943), holding that compelling students to recite the pledge of allegiance violates that student’s rights under the First Amendment.

Harlan Stone was an Associate Justice in 1940 when the Court decided the Gobitas case. In 1941 he was elevated to Chief Justice of the Supreme Court and joined the majority opinion written by Associate Justice Robert Jackson. Frankfurter would file a dissenting opinion in the Barnette case.

Don’t pledge allegiance to the flag

The pledge of allegiance is a product of socialism, possibly even a product of progressivism. James Peron wrote an article published in May 2001 in which he puts forth an interesting argument stating that the pledge is a “child of the socialist Progressive movement”.5Peron, James. (2001, May). “The Pledge versus the Oath.” Ideas on Liberty, 51(5). And if you want to see some interesting, but somewhat unorganized arguments linking the pledge of allegiance to Nazism, google Rex Curry.

So with the legacy of the pledge itself questionably un-American, why are so many Americans so concerned with preserving the two words “under God”? Hell, even the original flag salute (see right), called the Bellamy salute, had to be repealed and modified. That wouldn’t occur officially until June 22, 1942. The Bellamy salute started with the palm down salute used by our military followed by the arm being extended outward toward the flag as shown in the photograph.

Repeal the pledge!

I say the time has come to remove the pledge of allegiance entirely. Repeal the pledge, I say. Except the progressives in Congress will want to keep it because of its socialist and progressive legacy, and the conservatives will want to keep it because of the words “under God”. Interesting, to say the least. Troubling, as well.

We need to stop reciting it in schools, stop reciting it period. We need to get rid of the pledge of allegiance.

Instead declare your allegiance to the Constitution of the United States of America.

See also: Putting nationalism ahead of freedom and the Constitution

Citations

References[+]

Immigration/Letters to politicians

Response from Senator Lieberman

Posted on by Kenneth Ballard / 0 Comment

Recall from an earlier post that I sent an e-mail to Senator Lieberman (I-CT) regarding the Terrorist Expatriation Act. I’ve received a reply from the Senator’s office, and it was unfortunately a form reply:

Dear Mr. Ballard:

Thank you for taking the time to contact me. I appreciate the opportunity to know your opinions on the pressing issues facing our nation. Regrettably, due to the huge volume of mail that I receive, I am only able to research and address comments sent to me from Connecticut residents. If you are not from Connecticut, you may want to consider sending a message to the Senators from your state of residence. You can do so by visiting http://www.senate.gov for a link to the websites of each member of the United State Senate. If you are currently residing out of state, but are still a Connecticut resident or have a connection to Connecticut, please be certain to use your Connecticut address or indicate your Connecticut connection in the first paragraph of your email.

I value having the benefit of your thoughtful concerns, since I do receive detailed weekly reports from my staff providing a sampling of comments from across the country on timely issues before Congress.

Thank you again for sharing your views and concerns with me. I hope you will continue to visit my website at http://lieberman.senate.gov for updated news about my work on behalf of Connecticut and the nation. Please contact me if you have any additional questions or comments about our work in Congress.

Sincerely,

Joseph I. Lieberman
UNITED STATES SENATOR

Ah, nothing like getting blown off by our representatives. You’d think that because I was sending an e-mail about legislation he created that he’d be willing to answer questions about it. After all, it is his legislation, so he should defend it against anyone who asks questions, whether from the media and even from citizens who aren’t part of his constituency. I will be sending e-mails to my respective Senators and my Congressman about this bill as well to solicit an opinion. As with my e-mail to Senator Lieberman, I’ll post those e-mails when I send them.

As of May 6 both the House and Senate versions of the Terrorist Expatriation Act have been submitted to committees within their respective houses. There has not been activity on either bill since that time.

Life/Religion

Commentary on holidays

Posted on by Kenneth Ballard / 0 Comment

Here’s one question I’ve found myself asking over the last few years: is there a point to holidays? Looking on Dictionary.com, a holiday is

a day fixed by law or custom on which ordinary business is suspended in commemoration of some event or in honor of some person.

Beyond the definition, what exactly is a holiday? It’s nothing more than a day that someone, somewhere, somehow managed to convince society should be deemed important. They honor someone or some event of ambiguous importance because we’ve lost the ability to honor that person or event on a daily basis, assuming they were important to begin with.

For example let’s take what is arguably the largest holiday in the Christian religion: Christmas. It’s a highly commercial time. For some, Christmas shopping begins in January and extends throughout the year, while for others it’s a mad dash in a few shopping days prior to December 25. For everyone who considers themselves a Christian and participates in the commercialization of that day, it’s also the largest annual display of hypocrisy ever conceived.

Now my gripe isn’t with any specific holiday, it’s with all holidays.

The Fourth of July commemorates the signing of the Declaration of Independence. What great way to celebrate the largest unmatched display of courage by recognizing it once a year and forgetting it every other day.

Memorial Day is to commemorate those who paid dearly such that society and posterity may enjoy the freedoms we take for granted every day. Commemorating one day to that memory will never be enough. We take for granted every day freedom of which we are stewards. Recognizing the ultimate sacrifice and those who paid that ultimate price just one day out of the year (two if you count Veteran’s Day) is never enough, especially when we all conveniently forget that we are stewards of liberty every other day of the year.

Veteran’s Day is the day to commemorate those who served this country with honor and lived to tell their story. Why recognize their service just one day of the year, then conveniently forget it every other day of the year? This just does not make sense.

Growing up I was reminded every day of the year of my father’s service to this country. Pictures around the house of my father in his Navy uniform reminded me of the 12 years he gave of himself to this country. For more than 20 years, I’ve carried my late grandfather’s Navy dog tag from his service during the Korean war. Though I don’t say it, I’m proud of them.

Remember that our servicemen, both enlisted and officers, don’t pick the battles they fight. However your support and recognition of our veterans and those currently serving should not be conditioned upon your support or approval of the missions they face. You should always support those currently serving, and recognize those who served with honor, and remember those who perished serving this country.

Next up on the chopping block, New Year’s Day. I can understand wanting a special day for the start of the year, but some of the practices for that particular day just boggle the mind, in my opinion. It’s a new year, but what’s the big deal? You hope that the new year will be better than the one left behind, but if you’re hoping that’s going to happen without any action or change on your part, you’re only wasting your time and effort. This, I believe, is the principal reason why new year resolutions fail.

And after New Year’s is everyone’s either favorite or most detested holiday: Valentine’s Day. There is so much I could say about this day, but I’ll leave it at this: like anniversaries and birthdays, if you think your significant other must do something on this day, you need to re-examine your relationship. Valentine’s Day is a joke, a commercial joke.

"But it’s the one day of the year where you can show each other how much you love them," I’ve heard one person say in attempted defense of the holiday. And my response was simply this, "And how is that any different from any other day of the year?" I don’t need Valentine’s Day as an excuse to take my fiancée out to dinner on the KC Plaza, dine her like she’s never been dined before, then bring her back home and test the boundaries of the local noise ordinances, nor do I need it as a way to convince her that I love her. Same with our anniversary or her birthday.

The best relationships are ones where displays of love are unexpected and spontaneous. Valentine’s Day is going to be either a day of disappointment or a day of illusion. If you truly love the person you’re with, you won’t care what happens on Valentine’s Day, or on any holiday for that matter. You’ll care only that you’re happy together.

Time to bring up Christmas again, this time because I’m bringing up Easter. Two Christian holidays that have become very commercial, all while Christians are screaming about how we don’t appreciate Jesus anymore, assuming you ever appreciated him to begin with.

Like Valentine’s Day for Christians, Christmas and Easter have become days where Christians who still care about their faith, even if they’re apathetic about it the other 363 days of the year (364 on leap years), come together to recognize the supposed divinity of Jesus, hoping that by at least recognizing those two days of the year and praying on those two days, they’ll still be saved and will walk alongside Jesus in heaven.

Can anyone smell the hypocrisy? I’ll give you a hint: it smells a lot like brimstone.

Again, I could go on and on about both Christmas and Easter, but that’s for another rant. And the same with the other holidays for that matter, so perhaps I will rant more about each holiday at later times, and I’ll include anniversaries and birthdays in that list as well.

And in case you couldn’t tell, I’m someone who has become anti-holiday in my experience. I just don’t see the point. If you want to try to convince me otherwise, go ahead, but I’ll warn you in advance that you’re in for one hell of a fight. And if you’re wondering how my fiancée could stay with me with my particular view toward anniversaries, birthdays and holidays, it’s simple: over the 5 1/2 years we’ve been together, we try to keep it all spontaneous.

— Happy whatever day it is you happen to be reading this…

Law/Politics

E-mail to Sen. Lieberman

Posted on by Kenneth Ballard / 0 Comment

Earlier today I sent the following e-mail to Sen. Joe Lieberman (I-CT) regarding his recent proposed legislation, the Terrorist Expatriation Act:

Mr Senator,

According to legislative records, on May 6 you introduced into the Senate the Terrorist Expatriation Act, designated S. 3327 (corresponding bill H.R. 5237 introduced the same day in the House). It has been noted in several forums that this bill, if enacted into law, would give the government the ability to expatriate a citizen on charges already designated as Federal crimes without the benefit of first having those charges tried in a United States District Court and guilt determined by a jury.

Currently in the US code, namely 8 USC 1481(a)(7), a person can be expatriated on several offenses, but expatriation cannot occur unless and until the person is convicted of said offenses. Your proposed legislation would give the Executive Branch the ability to usurp a person’s right to a trial and expatriate said person without the benefit of having a trial to determine, beyond reasonable doubt, the guilt of the person according to the charges specified in the legislation.

Do you intend to amend your legislation to require a criminal conviction before expatriation can occur on the issues listed in your legislation? If that is not your intent, would you vote Nay if such an amendment were proposed? Why or why not on both questions.

If you feel I have misinterpreted what your legislation would require, feel free to clarify.

Thank you,
Kenneth Ballard

If I receive a response from the Senator or his office, I’ll post it.

Pledge of Allegiance

Patriotic idolatry

Posted on by Kenneth Ballard / 0 Comment

Every nation on this planet has a flag, as do the individual States and territories of the United States of America. Originally written in 1892 by Francis Bellamy, the Pledge of Allegiance was published as part of a celebration of Christopher Columbus’ discovery of North America:

I pledge allegiance to my flag and the republic for which it stands: one nation indivisible with liberty and justice for all.

A bold statement, indeed, and it has since become part of the United States Code. Much of the history of the pledge since that time has been controversial. In its current form, the pledge reads as follows:

I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.14 USC § 4

At first glance, many do not give much thought to this statement. You are declaring your allegiance to the country, or so this statement would have you believe. You are, in actuality, declaring your allegiance to an idol, a material representative of the republic.

This form of political and patriotic idolatry has gone largely unnoticed. The flag is a symbol of the United States, just like the Great Seal of the United States of America is also a symbol of the United States, yet we don’t pledge or swear allegiance to that.

Much of the controversy behind the current pledge deals with two simple words: "under God". Whenever a threat is made to remove those two words, the Christian majority of this country sounds an alarm. How dare those words be removed. After all, this is a Christian nation, right? Does no one see the hypocrisy? I’ll admit I only recently realized it myself.

Recently a dear friend of mine posted this to her Facebook wall (minor corrections included):

I pledge Allegiance to the Flag of the United States of America, and to the Republic for which it Stands: One Nation, Under GOD, Indivisible, With Liberty and Justice for ALL. REPOST IF YOU THINK OUR COUNTRY AND OUR FLAG DESERVE RESPECT! Let’s see how many Americans will repost it???

My response is this, derived from the Oath of Allegiance provided in the Code of Federal Regulations28 CFR Part 337:

I do declare and solemnly affirm that I will support and defend the Constitution of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I take this obligation freely without any mental reservation or purpose of evasion.

I bear no allegiance to the flag of the United States, just as I bear no allegiance to the Great Seal of the United States. Both are symbols of this country, and anyone declaring allegiance to either is exercising political and patriotic idolatry and it is inappropriate.

My allegiance lies with the Constitution of the United States, for without it, we have no United States. Everyone’s allegiance should lie with the Constitution, not the flag. Declare and solemnly affirm that you will support and defend the Constitution of the United States of America.

References[+]

Debt/Life

$18,000 cell phone bill, revisited

Posted on by Kenneth Ballard / 0 Comment

Well apparently the matter regarding the enormous cell phone bill has been settled, or so everything seems.

Article: "Verizon forgives balance of $18,000 cellphone bill"

From the statement by Verizon Wireless:

Despite making a substantial adjustment to the customer’s bill in 2006, we concluded last week the remaining balance was uncollectible, wrote it off and consider the matter closed.

The balance was deemed "uncollectible". This could mean they turned it over to a collection agency, which means the problem for the St Germain’s is only starting, or they completely forgave the entire balance (which requires a written statement to that effect to be of any substance), in which case they might want to start paying the IRS now and try to pay them about $3,000 between now and the end of the year.

Why? Forgiven debts are treated as income. This balance was a debt incurred by the family to Verizon Wireless. If Verizon forgave the debt, their annual income just jumped by $18,000, and their tax bill will be jumping as well.

Hopefully Bob St Germain also learned a lesson to keep a closer eye on his cellular contract and the plan usage.

Immigration

Expatriation revisited

Posted on by Kenneth Ballard / 0 Comment

Recall an earlier article I posted regarding HR 5237, the Terrorist Expatriation Act. The idea was first the brainchild of Sen. Joe Lieberman (I-CT) and was introduced into the House of Representatives by Jason Altmire [R-PA(4)]. This bill, if passed into law, would amend the provisions of 8 USC § 1481 to provide for a paragraph 8 with the following subparagraphs:

  • (a) providing material support or resources to a foreign terrorist organization;
  • (b) engaging in, or purposefully and materially supporting, hostilities against the United States; or
  • (c) engaging in, or purposefully and materially supporting, hostilities against any country or armed force that is –
    • (1) directly engaged along with the United States in hostilities engaged in by the United States; or
    • (2) providing direct operational support to the United States in hostilities engaged in by the United States.

When I posted that article, I felt that the provision of 8 USC § 1483 that required the targeted citizen to be outside the United States before they can expatriated — that is, stripped of their United States citizenship — was enough of a safeguard to prevent abuse by our government. I know now that I was mistaken on that mark.

Let us refer to 8 USC § 1481(a)(7), which provides that a person may lose his or her nationality (citizenship) by

committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, or willfully performing any act in violation of section 2385 of title 18, or violating section 2384 of title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction. (emphasis added)

The emphasized text is the key to this paragraph. All other provisions in paragraphs 1 through 6 of 8 USC § 1481(a) are voluntary acts by the person relinquishing their citizenship. Paragraph 7, however, is distinguished from the preceding paragraphs in that citizenship is not being voluntarily relinquished, but involuntarily stripped from the person, and this can only occur if the person has been subject to a trial or court martial and subsequently convicted.

Now look at the proposed paragraph 8 above. What is missing?

As an article from the CATO Institute points out, providing material support to a "foreign terrorist organization" as designated by the Department of State is a Federal crime118 USC § 2339B, as is engaging in "hostilities" against the United States2defined in the bill as "any conflict subject to the laws of war" — i.e. treason (see Article III, Section 3 of the Constitution of the United States). But this bill would allow a person to be expatriated without a trial ensuing, usurping the criminal trial requirement that these facts be determined to exist beyond reasonable doubt and replacing it with a mere preponderance of the evidence.

So the proposed paragraph 8 does not require a criminal conviction before expatriation can occur. A person can be stripped of their citizenship without even being convicted of the associated Federal crimes. Does this smell bad to anyone? No presumption of innocence, no due process, no nothing.

The only safeguard against this is the Supreme Court requirement that the State Department show that the person committed the expatriating offense with the intent of also relinquishing citizenship.3Vance v. Terrazas, 444 US 252 (1980) The expatriated person must also be given the ability to appeal the expatriation.

I stand by my previous statements when I said that I can "fully appreciate the intention behind" the bill. However, in light of these recent revelations, I cannot support it. If a person is to be stripped of their citizenship, it must occur following a criminal conviction and no sooner. The provision of 8 USC § 1483 would still require the person to be outside the United States before they can be expatriated unless the bill is amended to address that section as well.

References[+]

Due process/Religion/Supreme Court

Presumption of innocence

Posted on by Kenneth Ballard / 0 Comment

Ei incumbit probatio qui dicit, non qui negat.1“The burden of proof rests on who asserts, not on who denies.”

In the United States of America, any person accused of a crime is to be presumed innocent until properly obtained, admissible and relevant evidence is presented to a jury within a Court of Law and that jury determines otherwise.

People are presumed innocent … innocent until a court of law can examine all the evidence and prove otherwise. Until then everything else is … gossip. –Gil Grissom (CSI: Crime Scene Investigation)2Donahue, A. (Writer) & Cannon, D. (Director). (2001). “Gentle, Gentle” [Television Series Episode]. In D. Cannon, C. Chvatal, & W. Petersen (Producers), CSI: Crime Scene Investigation. New York: CBS Broadcasting, Inc.

The presumption of innocence is the reason when referring to an accused individual with regard to a crime we use the moniker “alleged“: “alleged murder”, “alleged rapist”, “alleged terrorist”. Interchangeably the word “suspect” or “suspected” could be used as well: “murder suspect” or “suspected terrorist”.

Our system of justice is established in its current form with the intent of protecting a person’s rights. One could say you have a right of innocence, or a right of presumed innocence — no person has a right to accuse you of a crime without adequate evidence, a standard known as probable cause.

Probable cause is the level of evidence necessary to secure a warrant of arrest.3The Fourth Amendment to the Constitution requires this: “…and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (emphasis added) It is not, however, the level of evidence necessary for a finding of guilt, which is the far higher standard called “beyond reasonable doubt”. I’ll get to that in a little bit.

Yet one major problem we have in this country is the assumption by the general public that when a person is apprehended by law enforcement, they have found the person who actually committed the crime. The reason for this I feel is mostly psychological — people sleep better at night when arrests are made in major crimes, even if the police did not apprehend the right suspect, and there is a loss of faith or trust in law enforcement when the wrong person is apprehended or an accused person is acquitted at trial.

One phrase I’ve heard numerous times from individuals of various levels of education and intelligence can be paraphrased as this: why would the police arrest someone if the arrested person is not guilty?

The level of evidence necessary for a finding of guilt within a Court of Law is known as “beyond reasonable doubt“. While not easy to define, the concept of beyond reasonable doubt has a long history in our system of criminal justice. An attempt to define this was made by the Supreme Court of the Commonwealth of Massachusetts in 1850 and has become generally accepted even by the Supreme Court of the United States as a proper definition:

[I]t is not sufficient to establish a probability, though a strong one arising from the doctrine of chances, that the fact charged is more likely to be true than the contrary; but the evidence must establish the truth of the fact to a reasonable and moral certainty; a certainty that convinces and directs the understanding, and satisfies the reason and judgment, of those who are bound to act conscientiously upon it. This we take to be proof beyond reasonable doubt.4Commonwealth v. Webster, 59 Mass. 295, 320 (1850)

Proof to a reasonable and moral certainty. Reasonable doubt itself is the doubt of the account of a matter that causes a person to hesitate in saying to a moral certainty the accused is guilty. This is not the impossible standard of “beyond a shadow of a doubt”, but slightly below that.

Laying an undeserving judgment of guilt upon an individual also has severe religious implications, which in post-Renaissance England inhibited a juror’s ability to convict for fear of retribution or vengeance by God. The reasonable doubt standard arose originally not to make it more difficult to convict, but actually to make it easier by way of releasing the juror from the fear of God.

And yet in today’s society we have no problem laying judgment upon people who are accused of a crime. And even beyond accusations of a criminal nature, we have no problem laying judgments upon others, even in our predominantly Christian culture where in the Bible it states:

Judge not, that ye be not judged. For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again.5Matthew 7:1-2

Judge not according to the appearance, but judge righteous judgment.6John 7:24

I’m not a Christian scholar, but I interpret these two passages of the Bible to basically say that one should not lay judgment by any measure you would not have judgment laid upon yourself, and one should not judge by appearance alone. If you pass judgment hastily upon others, expect judgment to be passed hastily upon you.

In the context of this discussion, it means this: If you provide your fellow man no presumption of innocence, you have no right to demand it for yourself. Allow others to be presumed innocent when accused, and you shall also be presumed innocent in the face of an accusation.

And note I said “fellow man”, not “fellow citizen” or something similar. The presumption of innocence is to be extended to everyone, every individual accused of a crime, regardless of whether that individual is a citizen of the United States or not, legal resident or not. The presumption of innocence is a bedrock principle not only of our criminal justice system, but of the American society.

It is one of the reasons why peoples of all walks of life come to the United States, legally and not, year after year. Here in the United States if you are accused of a crime, you are to be presumed innocent, not just in the eyes of the law, but also in the eyes of our society, unless and until evidence shows otherwise.

Resources

Whitman, James Q. (2008, February 25). “What Are the Origins of ‘Reasonable Doubt’?” History New Network.

References[+]

Fifth Amendment

Mirandizing terrorists

Posted on by Kenneth Ballard / 0 Comment

When you are arrested and taken into custody by a law enforcement officer, the Courts are your last safeguard with regard to your rights. The Court applies the law and the Constitution and examines everything with regard to the crime of which you are accused, being not only the factfinder, but also making sure the government, by way of the law enforcement officer, acted appropriately within the bounds of the Constitution and any applicable laws at every step of the investigation, including the arrest and detention of the accused.

While some could say the government has no obligation to inform you of your rights, the government does have to respect them. Informing you of your rights is the government’s way of acknowledging those rights and remaining in check with respect to your rights.

No one screamed about Timothy McVeigh being Mirandized, and with 160 dead because of him, I think we can all say he was a domestic terrorist who also happened to be a citizen of the United States. The same with John Allen Muhammad, the “DC sniper”. I think we can all agree he was a terrorist as well. Both McVeigh and Muhammad were also military veterans.

When did we suddenly draw the line by saying that US citizens who want to kill a large number of people no longer have their rights? Yes it is certainly alarming that someone would want to kill a large number of people, but there are scumbags out there. There are insane people out there who care for nothing except their frag count, and some of them are US citizens.

Should we now start drawing the line with serial murderers and serial rapists? What about child molesters since we can say they terrorize children and families with children? Should they not be Mirandized either? Many would probably say yes, but the question to ask in that instance is why they should not be Mirandized.

Why are we now saying that terrorists shouldn’t be Mirandized? When did we draw that line? Because the person might have information? So do a lot of people who are arrested — drug dealers can give names of their suppliers, serial murderers can tell you if there are more bodies than you’ve so far discovered, serial rapists and child molesters can tell you if there are more victims than you’ve discovered. We don’t withhold Miranda from them.

When we start drawing lines on who should not be informed of their rights, pretty soon the number of people who are informed of their rights becomes a minority. This should not even be up for question: Mirandize everyone who is apprehended by civilian law enforcement, citizen or not, regardless of why they are being arrested.

Please read my follow-up to this article regarding events surrounding the Boston Marathon.

Supreme Court

Elena Kagan

Posted on by Kenneth Ballard / 0 Comment

As an attorney, Elena Kagan, currently the Solicitor General of the United States, has a distinguished and accomplished career. However she does not have any experience as a jurist, which makes her nomination by President Obama to replace retiring United States Supreme Court Associate Justice John Paul Stevens perplexing.

Typically service as a judge in the Federal appellate level is a de facto qualification for the Supreme Court, though one not outlined in the Constitution. Now Kagan is not the first nominee in recent history to not have any service as a judge at any level. The late Chief Justice William Rehnquist was nominated by Nixon for the Supreme Court while Rehnquist served in the Justice Department, and former Justice Sandra Day O’Connor was nominated by Reagan out of the Arizona legislature.

All currently-serving Supreme Court justices were previously at the Federal appellate level prior to their nomination to the Supreme Court:

As you can see, the currently sitting justices are majority from the DC Circuit, including the Chief Justice. Recently-retired Associate Justice David Souter served on the DC Circuit as well prior to his nomination for the Supreme Court by George H.W. Bush.

Now it unfortunately appears that she will be confirmed by a "rubber stamp" vote by the Senate unless something really damning about her comes up. I expect Senator Lindsey Graham (R-SC) to restate the observation he gave during Justice Sotomayor’s confirmation hearings (the same hearings in which ‘Miss Jane Roe’, aka Norma McCorvey, was arrested for trying to disrupt the hearings1Kane, Paul. (2009, July 13). "‘Jane Roe’ Arrested at Supreme Court Hearing". Washington Post.):

Unless you have a complete meltdown, you’re gonna get confirmed.2Real Clear Politics Video. (2009, July 13). "Sen. Graham: Barring A Meltdown, Sotomayor Will Be Confirmed".

Kagan was the only candidate to replace Justice Stevens who is not and never was a jurist. That is the one issue that the Senators on both sides of the aisle need to consider, more so than the fact that it’s easier to learn who Jack the Ripper actually was than determine Kagan’s point of view on many key topics. Many have questioned whether Kagan will be Obama’s Harriet Miers.

Part of Kagan’s past includes a very thin record of legal scholarship. As Paul Campos, writing for The Daily Beast observed:

Kagan’s work reminded me of Orwell’s observation that, if book reviewers were honest, 19 of 20 reviews would consist of the sentence, "this book inspires in me no thoughts whatever." The bottom line regarding Kagan’s scholarly career is that there’s no there there. This is a problem not only because we have no evidence regarding what her views might be on almost any important legal question, but also because Kagan’s supposed academic achievements are being touted as the primary justification for putting someone who has never been a judge on the nation’s highest court. Now the fact that Kagan is more or less an academic nonentity would be of merely academic interest if she possessed unrelated but compelling qualifications for ascending to the nation’s highest court.3Campos, Paul. (2010, May 1). "The Next Harriet Miers?" The Daily Beast.

Kagan clearly has no qualifications really for any Federal appellate court, let alone the Supreme Court of the United States. Now while Rehnquist and O’Connor were two very distinguished jurists while on the Supreme Court, and neither previously served on any Court before the Supreme Court, a similar prediction really cannot be made of Kagan.

If the Senate is smart (of which I doubt), they will refuse to confirm Elena Kagan and their advice to the President will be summarized as "find a Circuit Court judge and try again".

References[+]