Molon Labe

Cross posted from Blue Collar Muse:

This is one of those stories that makes me immediately think of Glenn Beck and his advice that one wrap their head in duct tape before exposure as it will make the pieces of one’s head easier to find after it explodes. What’s the deal with Oklahoma? First Paul Jacob and now this? I’m reminded of the biblical admonition, “Woe to you who call evil, good and good, evil!”

It is difficult to conceive of more ignorant, stupid and asinine judges than those in this story. It is also difficult to believe any of them are men or parents. From my perspective, had they been either, the perp would have been on the receiving end of a little frontier justice.

The story is reported at Paul Jacob’s Common Sense column and radio show.

Two years ago in Oklahoma, Riccardo Gino Ferrante was arrested for aiming a camera up a 16-year-old girl’s skirt while in a Target store. He was arrested and convicted of a felony.

Unfortunately, in mid-March four-fifths of Oklahoma’s Court of Criminal Appeals voted that no felony occurred.

Why?

Because “the person photographed was not in a place where she had a reasonable expectation of privacy.” (emphasis added)

In case you’re shaking your head and hearing those cartoon head-shaking sounds, let me assure you this is no joke and you read the words correctly.

A man photographed a 16 year old girl, without her knowledge or permission, in a retail store. The photo was a type of soft core porn filming known as “up-skirt” shots. He was properly arrested and charged with a felony! The court, however, found he had done nothing wrong since the 16 year old should know wearing a skirt in public was granting permission for someone to photograph her in a humiliating and pornographic manner. It’s the same as wearing a sign declaring yourself an adult film star.

In a common sense world, people understand you can’t yell “Fire!” in a crowded theater despite having Freedom of Speech; you can’t write stories about people based on conjecture and rumors despite having Freedom of the Press; you can’t gather to plot terrorist attacks despite having the Freedom to Assemble; and, you cannot clandestinely photograph up the skirt of females in retail stores because fools in black robes find your activity is protected by the victim’s unwitting abdication of her Right to Privacy by going to the mall in a skirt!!

I keep running this story over and over in my head waiting for the lightning strike that will cause it to all make sense. I’ve given up. It doesn’t make sense and it’s never going to. Probably because I went to seminary and learned right from wrong and not law school where they evidently teach how to give Rights to those doing wrong.

Judicial activism, judicial review and other black robed ridiculousness we rail against are embodied in this tale of legal lunacy. It’s unclear if there are any precedents for the court’s failure to uphold the Constitutional rights of this young woman. It’s unclear if the court might be able to unconstitutionally appeal to some foreign law or precedent in support of their error.

What is crystal clear, however, is that in that very small space where I am comfortable allowing government to exist and operate, the job of government is to protect me and mine from infringements on our rights by others. The Oklahoma court not only failed to protect this minor girl’s rights, the court itself stripped her of one of the most important. Far from reassuring her that she should have no fear of not being “secure in her person” or that the privacy of her own clothing was sacrosanct, a court packed with buffoons did the opposite. Bluntly it means Oklahomans need protection from both Mr. Ferrante and their own courts!

In the face of such behavior, society should simply ignore the court and quietly teach Mr. Ferrante the meaning of the word “private”. If the court finds my suggestion to be in contempt, so be it! When a court behaves contemptibly it is proper to treat them accordingly.

Blue

This outrage was reported at Blue Collar Muse. The post is reprinted below in its entirety.

~Leonidas

One of our most cherished rights is to petition our government. If there’s a problem, we want our representatives to know so they can fix it. Imagine, however, if a top law enforcement official denied this right to citizens. Imagine he arrested them, threatening them with fines and imprisonment. Imagine it’s being driven by partisan politics. “Not in my America!”, you say? Let me introduce you to Paul Jacob and the Oklahoma 3.

Oklahoma is fortunate. If Oklahomans want an issue on the ballot, they can gather signatures and put it to a statewide vote. It’s called a ballot initiative and it’s popular with citizens. Gathering signatures is hard work so it doesn’t happen all the time. When it does, it’s usually to limit government somehow so it’s unpopular with legislators. To stop it, legislators try to make it very difficult. In Oklahoma in 2006, citizens wanted to vote on capping government spending increases over a certain amount and didn’t want government taking their homes and businesses through eminent domain and giving them to someone else who would pay the state more in taxes. To do that, they needed to gather almost 225,000 valid signatures in just 90 days to put the measures on the ballot.

Because it’s hard to get that many signatures that fast, it’s also common to use companies which specialize in circulating petitions. It happened all the time in Oklahoma. It’s further common for those circulating petitions to be from out of state. Legislatures, who usually oppose ballot initiatives, try to stop signature gathering with residency requirements. They legislate that to gather signatures in a state, you must also live there. Those laws have been challenged around the country and and defeated on First Amendment grounds. But not in Oklahoma because it has immediate residency laws. You can immediately come to Oklahoma, declare yourself a resident , and petition. The Oklahoma 3 knew about issues with residency laws and specifically asked Oklahoma about theirs. They were assured there was no problem with petitioners moving from other states to help out.

Oklahoma’s 20O6 initiatives faced some tough fights. The worst may have been a union organizer from Oregon bringing in squads of paid blockers to harass petitioners. Blockers lied about petitioner activity to bar them from property where they were collecting signatures. They spilled coffee and Cokes on completed petitions to destroy them. They verbally and physically intimidated petitioners and signers alike to stop the work. Despite this heavy opposition, the petitioners prevailed. They gathered almost 300,000 signatures. 80,000 more than were needed to get the issues on the ballot!

Unfazed by defeat, initiative opponents immediately started another fight. They challenged the petitions. They did not argue the signatures were invalid as that meant fighting signatures one by one. Instead, they challenged the residency status of signature gatherers. Despite ample precedent, it was deemed illegal to be in Oklahoma from somewhere else to collect signatures. The challengers won and tens of thousands of legal signatures were thrown out. Enough to prevent the measure from being on the ballot. It gets worse.

To intimidate future initiative efforts, the Attorney General of Oklahoma himself, Drew Edmondson, personally issued felony indictments for three people – the Oklahoma 3. They are Paul Jacob, an initiative consultant; Susan Johnson, owner of the petition company; and, Rick Carpenter, the Oklahoma resident heading up the initiative. The basis of the indictment? The Oklahoma 3 should have known their petitioners were illegal even though the state said they were OK. Using them constituted attempted fraud!

Not a single allegedly “lawbreaking” petitioner was charged with any crime. Only the Oklahoma 3 were formally indicted and charged. The trio was shackled together like murderers and paraded before the press. Improperly circulating a petition is a misdemeanor. The Oklahoma 3’s felony carries a $25,000 fine and 10 years in prison. The residency law at the heart of the case? It’s currently under challenge in the US Supreme Court and likely to lose. But the Oklahoma 3 remain under indictment, are incurring expensive legal fees and might still be convicted for petitioning the government for relief from burdensome government policies. The very thing our country was founded upon is illegal in the opinion of Oklahoma’s Attorney General Drew Edmondson.

There’s more. A lot more. The union organizer from Oregon isn’t charged with anything. The out of state paid blockers were not illegal. You can legally come to Oklahoma to prevent Oklahomans from petitioning their government. But you can’t do so to help Oklahomans. In that case, Drew Edmondson says it’s illegal to be from somewhere else! The implications for residency as Drew Edmondson sees it are frightening. In order to participate in Oklahoma’s political process, Drew says you can’t just come for a little while. He says you have to declare yourself a permanent resident of Oklahoma. But he won’t say what that means.

So students who come from out of state may be barred from political activity despite spending years in the state. Workers transferred to Oklahoma may not be able to vote there. Talk about disenfranchising voters. The same goes for members of the military. None of these are permanent residents. So Drew says being political is a crime for those folks. You say, “Not in my America!” Drew Edmondson says, “Yes, in MY Amerika!”

At issue here are the basic freedoms Americans enjoy. The right to Free Speech. The right to petition your government for relief from onerous burdens. The right not to have your life destroyed by an Attorney General with an agenda. If it isn’t checked in Oklahoma, that same blight will spread to other initiative states. Help Free the Oklahoma 3!

Blue

In discussions of Constitutional interpretation, an interesting concept has turned up in the last few years in the context of a why a position is or is not Constitutional. It’s stated in some form of the idea that “the Constitution is a living document”.

The idea has appeal for a variety of reasons. The language is positive – our founding document is portrayed as living and vibrant, not stodgy and decrepit. It’s flexible, adaptable and able to change with the times. In today’s tech jargon, it’s 2.0; constantly updating to meet the freshest ideas and developments. Most people know one of the basic characteristics of the definition of life is anything which is alive, grows! If something stops growing it is either dead or dying. The intentional use of such language paints a picture of the document at the heart of our Republic as vibrant and energetic!. By association, changes made to that document or in its name are colored with the same brush. The intent is to have such changes viewed as proper and necessary to keep America in step with the times.

However, I find such an understanding of the Constitution, and legal rulings or private opinions based on it, to be deeply flawed in their understanding of both the content and the role of the Constitution. At its root, such a view finds the Constitution, as originally conceived and constructed, insufficient to address the challenges it faces in a more modern world. I cannot disagree more.

The first challenge faced by the idea of the Constitution as a living document is the basic simplicity of the document itself. This is not some lengthy work filled with hidden meaning. It was intended for public consumption. In fact, the entire original document was printed on just 4 pages of the Pennsylvania Packet and Daily Advertiser newspaper two days after it was signed. To give all citizens access to the document that would govern them, the text was routinely printed in other newspapers around the country. The assumption would seem to have been that readers would easily understand it. We continue that assumption today. Politicians and soldiers swear to defend the Constitution from its enemies. If it is difficult to understand and constantly changing, how can a man know who those enemies are? How can any particular view be said to be Constitutional or not if the Constitution itself is continually subject to review?

The second problem arises from the nature of the Constitution itself. Buildings are complex physical things, skyscrapers even more so. Interestingly, the largest ones, despite being made of steel and concrete, are flexible. The Empire State Building, for example, sways and moves at the top and was designed to do so. Its foundation, however, does not move. In fact, it is the stability of the foundation which permits the top to flex in the changing environment in which it continually finds itself. Just so, the Constitution is a foundational document, not one affected by passing environmental changes. It provides long term legal and cultural stability shielding us from the vagaries of societal fads.

Proclaiming the Constitution a living document is a deception. Whether by design or chance, the practical result of such a proclamation is separating citizens from their Constitutionally afforded protections. This creates a situation rife with potential for men with an agenda other than Liberty to oppress their countrymen. The Constitution was conceived and created to prevent government from trampling on the rights of men. Those rights were not granted to men by the Constitution. Rather they are recognized by the Constitution as being granted to all men by God. As such they are inviolate insofar as US law is concerned. Redefining the Constitution as a living document, capable of change and reinterpretation as each new generation sees fit, strips the eternal power of Divine authority from the document and substitutes ever changing human reason as the standard by which we judge.

It is not the Constitution which lives and breathes, it is the men which it rules who do so. With each party in its proper place, our values are firmly anchored and we greet a changing future confident that American ideals are well guarded. Swapping the roles, however, leaves us in the precarious place our country and culture currently find themselves. Standing on a shifting foundation, we flail about to keep our balance in a changing world. To cope, we make our Constitution say things it clearly does not as in the case of Roe v. Wade and make it silent on things to which it clearly speaks as in the case of Kelo v. New London.

The Constitution as a living document is a lie which threatens our Liberty as men and our existence as a nation. That threat must be opposed with the same passion and urgency our Founding Fathers opposed the enemies of Liberty which fought them so long ago. Either that, or we agree to submit to the whims of whichever King ends up on tomorrow’s throne. Asked by citizens what sort of government the delegates had created for America, Benjamin Franklin famously replied, “A republic, if you can keep it!” He knew then what I say now – there exist those who would steal our Liberty! I don’t intend to allow that to happen without a fight. So – to the advocates of a living Constitution; to those bending the Constitution to fit their own views; to those seeking to steal my Liberty, and; to those standing at a distance and suggesting I surrender my rights, I echo the response of Leonidas to Xerxes when it was suggested the Spartans at Thermopylae surrender their weapons. I say, “Molon labe!” – “Come and get them!”