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Law Rules

How we resolve our disputes

Entries in constitution (3)


Jury on Trial

In the aftermath of Casey Anthony’s acquittal of murder charges, cyberspace and the public airwaves seem to be full of people complaining about the stupid jurors and our jury system in general. Some have even called it a waste of taxpayer money. I disagree. I think the jurors in Orlando provided an enormously valuable service. With no prior criminal record, Casey Anthony is hardly a danger to the community, like a serial murderer or terrorist. She might be a lying slut, and even a danger to her own (dysfunctional) family, but does that warrant locking her up for life or until the conclusion of the appeals necessary to impose the death penalty? Talk about a waste of taxpayer money.

I don’t know if the jurors made the right decision in this case, but they certainly had a better view of the evidence and witnesses than I did. They were clearly a jury of Casey’s peers. They were also peers of the police and prosecutors. Some of them were parents of children like Caylee. They represented their community and performed their duty well. So I am not going to second-guess their decision.

The Sixth and Seventh Amendments to the U.S. Constitution preserve our right to trial by jury. While jurors’ decisions may be unpredictable, that is precisely what gives us good reason to search for our own collaborative and consensual solutions to disputes. Our founding fathers sought independence, not predictability. I hope that is what everyone was celebrating this past 4th of July weekend. I know I was.


A prayer for relief

My parents taught me that there are several things you should avoid discussing in polite company, at least until you get to know them better. Politics and religion are near the top of that list. Well, excuse me Mom and Dad, but everyone else has been discussing this in public lately. I’m talking about Judge Crabb’s decision in Freedom From Religion Foundation v. Obama. The U.S. District Court for the Western District of Wisconsin held the National Day of Prayer to be unconstitutional. I don’t intend to rehash the arguments on either side. My question is why anyone wants the government to declare a day of prayer? Don’t most religions advocate prayer at least once every day? And the law merely provides that the President shall issue a proclamation establishing a day when Americans may turn to God in prayer. Isn’t this superfluous? Americans may turn to God in prayer any day they like, or every day, or never. The National Day of Prayer does not change that. So, regardless of whether this law is constitutional, the real question is why anyone cares? If I were an atheist, it would not make me feel any different about being an American. I would know that I was part of small minority with or without that law. And if I were a religious zealot, how does the law benefit me? Does my faith in, or need to pray to, an omnipotent, omniscient, omnipresent creator really need the government’s help? If the government helps religion or prayer in the same manner that FEMA helped New Orleans after Hurricane Katrina, I think we would have a nation of atheists within a very short period of time. In other words, as Michael Kessler of Georgetown University said recently, “if you’re religious and want prayer recognized nationally, having the government do it is a really bad idea.” Amen. This law should be filed under “Be careful of what you wish for. You may get it.”



Judicial activism

Returning from a long 4th of July holiday weekend, I feel the need to wax patriotic.  I love this country, and what I love most is the Constitution that has served us so well for almost 220 years (or at least for the last 150 years, since the post-Civil War amendments abolished slavery). But there are still many people who do not understand or appreciate what the Constitution does for us.  A recent opinion column in our local newspaper complained that “judicial activism” sidesteps democracy.  I believe that just the opposite is true.  Judicial activism is necessary for democracy.  While there is no precise definition of the term, “legal activist” is frequently used to describe any judge who makes a decision that the users disagree with.  They complain that by making decisions that certain laws or governmental actions are unconstitutional, the courts are making law.  Of course they are!  Our democracy and liberty depend not only on majority rule, but on the individual rights guaranteed by the Constitution and the Bill of Rights. Without the right of judicial review, the separation of powers established by the Constitution cannot protect us from the tyranny of the majority.  Remember, the Third Reich was popularly elected by German voters.  Without an effective (i.e., “activist”) judiciary, the legislative and executive branches could dictate what religion people could and could not practice, where they could live and work, and ultimately who could live and who would die, all based on their race, religion, ethnicity, politics, gender or sexual orientation.  People who complain that judicial activists use the courts to subvert the democratic process are missing the point.  They are the ones who are most likely to sidestep democracy.