-=> Quoting Dennis Martin to Jim Casto <=-
 DM> By your reasoning then Jim, is it legal or illegal to drive a motor
 DM> vehicle??? 
 
 You are confusing "legality" versus "Constitutionality". Just because some
 "act" (such as driving a car) is _legal_ does _not_ mean that it is
 legal "Constitutionally". The only thing that makes driving a car _legal_
 is the fact that it _state_ laws which the Constitution allows. If you
 are ever denied the right to drive a vehicle by your state, I seriously
 doubt that you will be able to successfully argue the case before the
 Supreme Court, which is the _only_ legal entity to decide
 "Constitutionality".
 That is the only thing that made slavery legal in _some_ states under the
 Constitution. Some states had laws that allowed it, some did not. The
 Constitution did not say one way or the other just as it didn't say one way
 or the other on the legality of driving a horse-drawn wagon. And it did not
 stipulate one way or the other on purpose. There was a compromise to even
 get it passed and ratified. What was the alternative? No Constitution, no
 United (against the British) States? Continue as a Confederation under the
 Articles of Confederation? What was the status of slavery under the Articles
 of Confederation? (I don't have the full text here at the house, but any
 reference I have doesn't say that it is even mentioned.) My hunch is that
 the Articles of Confederation left the issue up to the individual states.
 
 DM> In this case, I don't think the law of ommission is valid.  Rights and
 DM> responsibilities are accepted, until legislated against.  This implies
 DM> legality.  Otherwise, to do something as simple as walking down the
 DM> street  could be considered illegal.  
 
 Again, walking down the street is not a Constitutional issue. Now, if 
omeone
 were to prevent you from walking down the street (let's say in a large group
 protesting jaywalking laws as being un-Constitutional) thereby depriving you
 and your group of some _Constitutional_ right, such as "freedom to assemble"
 then it could be a Constitutional/Supreme Court issue. The Supreme Court is
 _constantly_ called upon to adjudicate the _Constitutionality_ of some law
 (or punishment) just as I cited in the case of Connecticut's condom law.
 Oregon has a situation working right now that will no doubt wind up in the
 Supreme Court (come to think of it, it may have already) and that is the 
 issue of "assisted suicide" (as in assisted by a doctor prescribing a lethal
 prescription which the individual takes). Currently, the _Constitution_
 doesn't say one way or the other, therefore, by the "law of omission" it
 _must_ be legal? I don't think so. I suspect a doctor would be in big
 trouble if they did such a thing. So.... What will happen at the Supreme
 Court level is the case will be decided on something such as a
 Constitutional "right of privacy" or some such thing.
 
 DM> True with regard to the Court's "judicial activism".  However, if a
 DM> state  makes a more restrictive law than the Federal Law covering the
 DM> same crime,  (piracy for example), then the state law takes effect.  
 
 True. (But I can't recall where piracy is mentioned in the Constitution.)
 DM> Don't be misled into thinking that the Constitution is the end all of
 DM> law.
 I'm not.
 DM> It is primarily a working model of how the government operate,
 DM> and where it must  limit it's authority.  In short, it's more of an
 DM> operating manual than a law.
 Absolutely.
 DM> The U.S. Codes are the real laws
 DM> governing the citizens as the Legislature and the President see fit. 
 
 At the _Federal_ level, however, not the state, county or city level.
 DM> The Supreme Court's role is only to rule on the  legality of the laws
 DM> as they are written and adjudicated.
 True. As long as the "legality" can be defended by some Constitutional
 interpretation.
 DM> In the absence of  Constitutional
 DM> guidelines, (as in the case of Roe v. Wade (1972))  the  Justices have
 DM> to interpret the intent of the Constitution.   
 That interpretation of "intent" gets the Supreme Court into trouble a LOT.
 "Intent" of whom? The original authors? (those folks are called
 "originalists") "Intent" of the Public at Large"? "Intent" of the President
 that appointed the particular Supreme Court Justice?
 
 DM> The make up of the court is ever changing according to the
 DM> Administrations and Congressional beliefs at the time of each Justice's
 DM> appointment.   
 Absolutely. The whims of the Supreme Court can also be swayed by public
 opinion.
 DM> With regard to the 1942 case, (Betts v. Brady, 1942) remember the 
 DM> Administration and Congress were both on the liberal side, and dealing
 DM> with a  destroyed economy.  There wasn't much money for lawyers either
 DM> in the general  population, or in the government which was currently
 DM> funding a war on very  little money.  
 
 In the Supreme Court's findings, money had nothing to do with it. The
 Maryland law _did_ provide legal counsel for indigent people but only for 
 _some_ capital offenses. (Other states had similar laws and some of those
 laws had been on the books _long_ before the Civil War.) 
 DM> By the time the Gideon trial went to court, the country's economy was
 DM> booming, and (post war affluence, along with techonlogy advances
 DM> putting plety of money into peopls pockets).  The country was also
 DM> shortly over an 8 year reign of  conservative Legislatures and a
 DM> Conservative Administration who could appoint  conservative judges. 
 DM> Remember, conservatives, liberal, and moderates all look at things with
 DM> differing points of view.
 
 That is all true. But the Gideon decision was unanimous and voted to 
verturn
 Betts, which was a split decsison. I doubt that all the SC Justices were
 either conservative, liberal, or moderate at the time either case was 
decided.
 DM> In this case, it would be a state crime, as there is no federal
 DM> statute  against murder.  (The closest they have is "denying the victim
 DM> their civil  rights.  Read up on the Civil Rights Movement of the
 DM> 1950's and 60's.)   Federal reservations are subject to state laws in
 DM> the absence of federal law,  because the victims are generally citizens
 DM> of a state jurisdiction.  That's  how I view the law anyway, if I'm
 DM> remembering correctly from my Criminal Laws  classes in the early 70's.
 
 Uh, I'm not sure that the state laws (or even Federal laws) apply in all
 cases on Indian reservations. It has to do with who (Indian or non-Indian)
 commits the crime against who (Indian or non-Indian) and in some situations
 will be remanded to tribal court.
 DM> Also, two of the cases of interest in that class was Gideon v.
 DM> Wainwright and  the Miranda case.  
 
 "Miranda" will be discussed next week in class.
 
 DM> With what I've seen and heard over the years on this case, who knows
 DM> if he's  gulity or not.  The big problem if I remember correctly was: 
 DM> "did he know  whether what he did was right or wrong?"  As I understand
 DM> it, he was a  deaf-mute, who could not testify in his own behalf, and
 DM> had no idea of what  the proceedings were about.  I don't think he knew
 DM> sign language either, so  providing an interpreter would have been a
 DM> waste of time.  He needed legal  counsel to protect his rights, because
 DM> he may not have even understood what  was happening.  
 
 Quoting from the syllabus I have. "Petitioner conducted his own defense
 about as well as could be expected of any layman..." (It also says he was
 illiterate but says nothing about any physical disabilities, in fact, he
 made a statement in his own behalf, questioned witnesses, etc.) However,
 the Florida law was similar to the Maryland law. Capital cases _only_
 warranted state-provided legal counsel. The Supreme Court ruling was that
 it didn't matter under the 6th and 14th Amendments.
 
 DM> As I see it, the states did have the right to succeed.
 So, if you had been running the country in 1865, which of these three
 options would you have chosen when some of the Southern states left the
 Union?
 
 1. Compromise by giving into the pro-slavers.
 
 2. Let the states "go in peace" as Horace Greely suggested. (Which would
    have meant the seven southern states would have been on their own and
    slavery would have been legal in the South and probably illegal in the
    North.)
 3. Force the Southern states back into the Union.
 
 DM> federal government for  readmission.  Why do you think the
 DM> carpet-baggers were so eager to get into  office?   
 
 The same reason many, if not most, people seek political office. I sure 
on't
 think they do so because they are "patriotic".
 DM> If you're talking about the "Texas Republic" fiasco, they are a
 DM> radical band,  much like the Arizona Militia, and other such
 DM> "anti-government" groups around  the nation.
 I guess "radical" is an perspective viewpoint. Seems to me that Southerners
 during Civil War times were called "radical", also. I think John Brown was
 probably called a "radical".
 There is an interesting article in a current local newspaper about
 "citizen's courts". Seems they don't like some laws because they aren't
 "Constitutional".
 
 Bottom line, however, in your opinion, is that through the initiative
 process and an affirmative vote by any state's citizenry that they would
 legally be allowed to secede from the Union at the present time? 
 
 Jim
--- Blue Wave v2.12
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