Zimmerman: Aspirations

We are more than who we are at any given moment. We are also who we aspire to be.

Both Zimmerman and Martin were flawed men, but Zimmerman's writings and behavior showed a man who aspired to be something better, while Martin's showed that he wanted only to sink down. Martin can't be entirely blamed for that, he did not create and perpetuate the fake gansta culture. It's the mostly white entertainment industry that did that, often embedded in the same news corporations which organized the lynching of George Zimmerman.

The entertainment industry did not tell Martin what would happen if he assaulted an adult man who was concerned about the neighborhood, while Martin was concerned about getting the "Respect" that gangsta culture told him he was entitled to by virtue of his posing.

Martin did not understand that life was different than gangsta culture. That men who have guns don't necessarily go waving them around. And that sometimes when you have someone down on the ground and you're beating on them, they will use what they have.

Had Martin killed Zimmerman, he would be preening for the cameras now, the defiant upward head tilt you see so often in court photos. The pose that says, "I don't care, because I'm too cool to care." It's the pose that the man who might have been Martin's father often wears to tell us that he's going to go on doing whatever he likes, because he can.

But that's not what you see in Zimmerman's face, it's not just regret, it's pain. Zimmerman did not intend to take another human life, and he regrets that and regrets how society sees him, and he is coming to terms with doing what he had to do. There is a basic decency in his expression which cannot be photoshopped onto Martin's face. The photoshopping can pale his skin, younger photos can make him look innocent, but nothing can make him look decent.

Zimmerman quoted Burke. Martin quoted hip hop. That was the fundamental difference between the two men, not race, but culture. Zimmerman aspired to be a good human being. Martin aspired to be street trash.

In a society under siege, there are builders and there are destroyers. Zimmerman was a builder, we will never know what Martin might have become, but he was on a path to becoming a destroyer.

We live in a culture that punishes builders and rewards destroyers. That treats the destroyer as innocent and moral, because he is untainted by knowledge and experience, because he resists the builders and spreads anarchy and chaos.

The gap between Martin and Zimmerman is the gap between the graffiti scrawler and the business owner, the occupy wall street thug and the office worker, the rap star and the composer, the activist and the entrepreneur.

Martin was just another pawn in a culture war waged by the destroyers against civilization. As a a man he gorged himself on destroyer culture, imitated it and then fatally lived it out. As a dead man, he became a rallying cry for the destroyers.

There have been multiple black on white hate crimes in his name. There is a trial in his name. And there is an election campaign in his name.

Destroyers are obsessed with martyrs. They need these tokens to see them along to the next fight, the Horst Wessels, the Pavlik Morozovs, the Hussein ibn Alis and the Trayvon Martins. Idealized figures to justify the destruction and repression that they visit on others. Rituals, show trials, songs, marches whip them up into a frenzy of destruction.

The Destroyers are always out for respect, but when they say 'respect' they really mean power, they really mean the right to destroy because they are somehow superior. They aren't. Decency is worth respecting, power isn't. And those who try to get power by enforcing a mandate to respect them sometimes learn that power works both ways.

http://www.danielgreenfield.org/2012/04/friday-afternoon-roundup-builders-and.html

liberal John Paul Stevens

https://www.newyorker.com/magazine/2010/03/22/after-stevens

Decisions which are based on what are known as “unenumerated rights” in the Constitution, have long drawn the ire of conservatives. “It’s in recent years that Stevens has most become an activist judge,” Bork told me. “He finds rights in the Constitution that no plausible reading could find there.”

But such cases also raised his standing with liberals. “It was particularly selfless for Stevens to assign Lawrence to Kennedy,” Dellinger said. “He could have chosen the honor of writing Lawrence for himself. But it seems he wanted to make sure that the tentative vote to strike down the Texas law held up, and assigning the opinion of the Court to Kennedy locked in the majority.”

Andrew Siegel, a Stevens clerk and now a law professor at Seattle University, said, “Stevens believes that constitutional decision-making is conducted through the interpretation of a mix of various sources—a complex balancing act.” He added, “The glue holding it all together is judicial judgment.”

This is the core of Stevens’s disagreement with his great intellectual adversary on the court, Antonin Scalia. When it comes to interpreting statutes, Scalia believes that the Court should be guided by the words of the law “all by itself,” as Stevens put it. Steven G. Calabresi, a law professor at Northwestern and a co-founder of the conservative Federalist Society, told me, “What makes Stevens a moderate liberal is that he is fundamentally a legal realist, which means that when the text and history of the Constitution point in one direction, and good results and good consequences point in the other, he’ll usually go with what he sees as the good results.”

He added, “Scalia sees the role of the judge as to read the text and apply it—period. Stevens thinks the law is more of a living thing, and he takes text and history and applies it in a way that he thinks serves the purposes of the framers, not necessarily their exact words.“

Scalia wrote as a “needed response to Justice Stevens’s separate opinion.” He criticized Stevens’s assertions about the death penalty, but it was Stevens’s invocation of his own “experience” that really outraged Scalia. “Purer expression cannot be found of the principle of rule by judicial fiat. In the face of Justice Stevens’s experience, the experience of all others is, it appears, of little consequence,” Scalia wrote, adding, “It is Justice Stevens’s experience that reigns over all.”

Scalia’s mockery gets to the heart of his critique of Stevens’s jurisprudence—that his variability simply amounts to a judge’s whim. “That flexibility and malleability that Stevens talks about is really just a license for a judge to reach any result he wants,” M. Edward Whelan III, a former Scalia clerk who runs the conservative Ethics and Public Policy Center, said. “Scalia believes in rules.” According to Calabresi, “Stevens gives judges too much freewheeling power, and that’s not the way our system was supposed to work and not the way it works the best.”

Federally owned lands

FT. LEAVENWORTH R. CO. v. LOWE

The land constituting the reservation was part of the territory acquired in 1803 by cession from France, and, until the formation of the state of Kansas, and her admission into the Union, the United States possessed the rights of a proprietor, and had political dominion and sovereignty over it. For many years before that admission it had been reserved from sale by the proper authorities of the United States for military purposes, and occupied by them as a military post. The jurisdiction of the United States over it during this time was necessarily paramount.

But in 1861 Kansas was admitted into the Union upon an equal footing with the original states; that is, with the same rights of political dominion and sovereignty, subject like them only to the constitution of the United States.

Congress might undoubtedly, upon such admission, have stipulated for retention of the political authority, dominion, and legislative power of the United States over the reservation, so long as it should be used for military purposes by the government; that is, it could have excepted the place from the jurisdiction of Kansas, as one needed for the uses of the general [114 U.S. 525, 527]   government.

But from some cause, inadvertence perhaps, or overconfidence that a recession of such jurisdiction could be had whenever desired, no such stipulation or exception was made. The United States, therefore, retained, after the admission of the state, only the rights of an ordinary proprietor; except as an instrument for the execution of the powers of the general government, that part of the tract, which was actually used for a fort or military post, was beyond such control of the state, by taxation or otherwise, as would defeat its use for those purposes. So far as the land constituting the reservation was not used for military purposes, the possession of the United States was only that of an individual proprietor. The state could have exercised, with reference to it, the same authority and jurisdiction which she could have exercised over similar property held by private parties.

This defect in the jurisdiction of the United States was called to the attention of the government in 1872. In April of that year the secretary of war addressed a communication to the attorney general, in closing papers touching the reservation, and submitting for his official opinion the questions, whether, under the constitution, the reservation of the land for a site as a military post and for public buildings took it out of the operation of the law of March 3, 1859, (11 St. 430,) and, if so, what action would be required on the part of the executive or congress to restore the land to the exclusive jurisdiction of the United States.
...

But not only by direct purchase have the United States been able to acquire lands they needed without the consent of the states, but it has been held that they possess the right of eminent domain within the states, using those terms, not as expressing the ultimate dominion, or title to property, but as indicating the right to take private property for public uses when needed to execute the powers conferred by the constitution; and that the general government is not dependent upon the caprice of individuals, or the will of state legislatures, in the acquisition of such lands as may be required for the full and effective exercise of its powers. This doctrine was authoritatively declared in Kohl v. U. S. 91 U.S. 367.

All the judges of the court agreed in the possession by the general government of this right, although there was a difference of opinion whether provision for the exercise of the right had been made in that case. The court, after observing that lands in the states are needed for forts, armories, and arsenals, for navy-yards and light-houses, for custom-houses and court-houses, and for other public uses, said: 'If the right to acquire property for such uses may be made a barren right by the unwillingness of property holders to sell, or by the action of a state, prohibiting a sale to the federal government, the constitutional grants of power may be rendered nugatory, and the government is dependent for its practical existence upon the will of a state, or even upon that of a private citizen.' The right to acquire property in this way, by condemnation, may [114 U.S. 525, 532]   be exerted either through tribunals expressly designated by congress, or by resort to tribunals of the state in which the property is situated, with her consent for that purpose. Such consent will always be presumed in the absence of express prohibition. U.S. v. Jones, 109 U.S. 513 , 519; S. C. 3 SUP. CT. REP. 346; Matter of Petition of U. S. 96 N. Y. 227.

Besides these modes of acquisition, the United States possessed, on the adoption of the constitution, an immense domain lying north and west of the Ohio river, acquired as the result of the revolutionary war, from Great Britain, or by cessions from Virginia, Massachusetts, and Connecticut; and, since the adoption of the constitution, they have, by cession from foreign countries, come into the ownership of a territory still larger, lying between the Mississippi river and the Pacific ocean, and out of these territories several states have been formed and admitted into the Union.

The proprietorship of the United States in large tracts of land within these states has remained after their admission. There has been, therefore, no necessity for them to purchase or to condemn lands within those states, for forts, arsenals, and other public buildings, unless they had disposed of what they afterwards needed. Having the title, they have usually reserved certain portions of their lands from sale or other disposition, for the uses of the government.

This brief statement as to the different modes in which the United States have acquired title to lands upon which public buildings have been erected, will serve to explain the nature of their jurisdiction over such places, and the consistency with each other of decisions on the subject by federal and state tribunals, and of opinions of the attorneys general.

The anemic 10th amendment

Americans often engage in the conceit that we have the oldest written constitution in the world. But that's a false story, and a dangerous lie to boot.

Yes, a Constitution was written in 1789. And it fell apart in 1861 under the weight of its uncertainty on whether the United States was a collection of sovereign states or one nation -- and even more so based on its moral bankruptcy on the issue of slavery.

And so, beginning in 1865, a new Constitution was forged, both in the halls of Congress and, as importantly, on the battlefields of Antietam, Bull Run and Gettysburg.

For all that some conservative members of the Supreme Court talk about "original intent" in the words of the Constitution, remarkably little attention is paid to the intent of those who refounded this nation in the wake of the Civil War. This is not a nation where the intent of slaveholders in 1789 is the only intent that matters in understanding constitutional law.  Instead, the movie Lincoln reveals a far more diverse set of principal players in our constitutional dramas -- not just Lincoln himself, but House Speaker Schuyler Colfax, abolitionist firebrand Thaddeus Stevens of Pennsylvania, Secretary of State William Seward, Rep. James Ashley of Ohio and a wide range of others.

Lincoln is the key player -- at least for this opening act of the constitutional drama -- but the movie is masterful in showing that the real story is the national will that he helped midwife among fractious factions to remake the Constitution.

And while Lincoln would exit the drama at the hands of an assassin, the rest of the players would continue the constitutional drama in coming years in enacting the 14th and 15th Amendments. This new Constitution was clearly dedicated to ending the dogmas of "states rights" and giving Congress the power to enforce this new national consensus.

That "states rights" was the key issue in this Constitutional change is understood, if disputed by some, but the latter point of giving Congress, not the Supreme Court, the responsibility for enforcing equality is less recognized. With the current Supreme Court reviewing whether Congress exceeded its powers under the 15th Amendment in renewing the "preclearance provisions" of the 1965 Civil Rights Act, the film is a strong reminder that constitutional drafters like Thaddeus Stevens were determined to challenge the power of the Supreme Court, which had essentially launched the Civil War by overturning Congressional legislation in the Dred Scott decision.

All three post-Civil War amendments provided -- crucially, in the minds of Stevens -- that "Congress shall have power to enforce this article by appropriate legislation." Note that these were the first Amendments to the Constitution that specified not limits on Congressional power but instead its expansion -- with not a word about a judicial role in limiting that power.

http://www.huffingtonpost.com/nathan-newman/lincoln-and-the-founding_b_2277918.html

Natural born and the Harvard Law Review Forum

According to Lee, two legal theories of citizenship were popular at the time the Constitution was ratified: jus soli (Latin for "law of the land), which held that a child's citizenship flowed from the actual, physical place of his birth, and jus sanguinis ("law of the blood"), which held that parents passed their citizenship to their children. However, Lee argues, at the time the Constitution was ratified, jus sanguinis applied only to patrilineal descent.

"However odious it seems today, a child born of a woman whose citizenship was different from her husband's—much rarer then than today—could not be a 'natural born Citizen' of the mother's country. That idea wasn't even considered until 1844 in Victorian England."

Mary Brigid McManamon, a constitutional law professor at Widener University, made a similar argument in The Washington Post Tuesday. "In this election cycle, numerous pundits have declared that Cruz is eligible to be president," she writes. "They rely on a supposed consensus among legal experts. This notion appears to emanate largely from a recent comment in the Harvard Law Review Forum by former Solicitors General Neal Katyal and Paul Clement. In trying to put the question of who is a natural-born citizen to rest, however, the authors misunderstand, misapply and ignore the relevant law."

The law Katyal and Clement are ignoring, McManamon argues, is 18th-century English common law, which the Supreme Court has said is a necessary lens for understanding the founders' understanding of the Constitution—a fact that Katyal, Clement and McManamon agree on.

English common law was "unequivocal" on the subject, McManamon says: "Natural-born subjects had to be born in English territory." Katyal and Clement, rather than relying on common law, turn for their interpretation to a trio of 18th-century British statutes that were "a revolutionary departure" from the common law, McManamon argues.

http://www.newsweek.com/ted-cruz-canadian-citizen-415430

Zimmerman's provocation

http://www.talkleft.com/story/2012/5/16/12944/9520

The state seems poised to claim that Zimmerman's following of Trayvon, and his verbal demand Trayvon explain his presence in the neighborhood, based on his unfounded assumption Martin was a criminal, somehow provoked Martin into hitting Zimmerman and made him the aggressor.

For the reasons I explained in the above posts, the state is unlikely to prevail on such a theory. To be an aggressor, Zimmerman had to provoke the force used by Martin. Provoking a state of fear is not enough. Also, Zimmerman's provocation had to be contemporaneous with Martin's use of force against him. It can't be the result of something that happened earlier.

Profiling, following and pursuing someone is not provocation for a punch in the nose or banging someone's head into concrete.

If Zimmerman is not the aggressor, if he didn't provoke Martin's punch, he had no duty to retreat, and so long as his fear of serious bodily injury or death from Trayvon's punch and/or slamming his head onto cement was reasonable, his use of deadly force in response was justifiable. Zimmerman was not committing a crime by profiling or following Trayvon and Zimmerman had a right to be on the streets of his neighborhood.

Even if Zimmerman somehow was found to be the aggressor, all that does is trigger a duty to retreat, if possible (on Trayvon's part). If retreat isn't possible, and Zimmerman feared serious bodily injury or death from Trayvon's physical attack on him, Zimmerman can still use deadly force.

voting and citizenship

It seems to be a matter of common sense that a person who wishes to vote must prove his citizenship.

Not only is this not required, it is illegal to require proof.

wikipedia explains that:

The National Voter Registration Act requires States to "accept and use" a uniform federal form to register voters for federal elections. 42 U. S. C. §1973gg–4(a)(1). That "Federal Form," developed by the federal Election Assistance Commission (EAC), requires only that an applicant affirm, under penalty of perjury, that he is a citizen.

Arizona law, however, requires voter-registration officials to "reject" any application for registration, including a Federal Form, that is not accompanied by documentary evidence of citizenship. Respondents, a group of individual Arizona residents and a group of nonprofit organizations, sought to enjoin that Arizona law.

Ultimately, the District Court granted Arizona summary judgment on respondents' claim that the NVRA preempts Arizona’s requirement.

The Ninth Circuit reversed, holding that the state's documentary-proof-of-citizenship requirement is preempted by the NVRA.

On June 17, 2013, the U.S. Supreme Court ruled against Arizona in the case Arizona v. Inter Tribal Council of Ariz., Inc.. The Court held the NVRA preempted a 2004 Arizona proposition, Proposition 200. It was a ballot initiative designed in part "to combat voter fraud by requiring voters to present proof of citizenship when they register to vote and to present identification when they vote on election day." Purcell v. Gonzalez, 549 U. S. 1, 2 (2006) (per curiam). It was a 7-2 decision striking down the law.

Justice Antonin Scalia wrote the majority opinion.

https://en.wikipedia.org/wiki/National_Voter_Registration_Act_of_1993