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March Madness: Facebook & Virtual vs Actual Democracy March 25, 2011

Posted by legalethicsemporium in Abortion, Immigration, Law, Ethics & Society, Mindfulness, U.S. Constitution.
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Middle Eastern uprisings sparked by  Facebook connections, public employees protesting in Wisconsin, Arizona’s reaction to protests over its immigration laws, and South Dakota’s new abortion law….March is a compelling month for the study of natural rights and the democratic process.

According to John Locke and our Founding Fathers we are all born with inalienable rights….or more simply stated…We are free and should only be constrained by  a democratic government in which we give up certain rights in exchange for the protection of our fundamental rights–a social contract.  Somehow, a number of dictators around the world didn’t get that memo…Despite that fact, the human spirit remains strong and with the advent of technology, we have seen a new version of democracy in action–the use of Facebook, Twitter, and texting as a means of revolution.

Groundbreaking, history in the making, and certainly worth noting and contrasting with our open society.  Why?  Because democracy is sometimes messy, often adversarial and down right unpleasant. However, underneath the unpleasantness remains the fact that we have a system that is to be cherished as the best method that human beings have been able to create to support fundamental freedoms.

The people of Egypt and other Middle Eastern countries have been able to use technology to accomplish uprisings against governments under which our brand of democracy does not exist.  By contrast the Wisconsin public employees “simply”exercised their constitutional rights to protest government imposed limits on public employees’ labor rights. The ongoing dispute with the state legislators is now headed for the state’s supreme court.

Arizona has developed a reputation as having some of the harshest immigration laws on its books and a governor who openly supports a tough stance.  There have been protests, media coverage and social media discussion criticizing Arizona’s recent laws , including on this blog.  It appears that all the criticism is not good for business as Arizona has lost tourist and other revenue, so recently five newly proposed restrictive immigration laws failed to muster the necessary votes  in the Arizona state legislature.

Finally, South Dakota, a state without a high incidence of abortion, but with a high percentage of republican legislators, has passed legislation that requires “women who are seeking abortions to first attend a consultation at such ‘pregnancy help centers,’ to learn what assistance is available ‘to help the mother keep and care for her child.'” It is probably unnecessary to explain the furor that this has caused in this controversial area….Planned Parenthood has indicated that it will move the debate from the legislature to a courtroom where the interpretation of  a woman’s constitutional rights in this area will be argued and decided upon once again.

Emotionally charged disputes in fundamental areas of society–employment, immigration, pregnancy–controversy abounds. However, regardless of how one feels about public employees’ union rights, immigration rights, or abortion, we can embrace the fact that we live in a country in which we have a right to publicly dispute these issues and a government that has a process by which to revisit and resolve our disagreements.  It might sound like a huge piece of American pie, but given what is transpiring in the Middle East, it seems worth taking a moment to pause and savour the sweet taste of democracy.


Comedians, Satire and the Law: 2010 “Cultural First Responders” December 29, 2010

Posted by legalethicsemporium in Gay Marriage, Gays in the Military, Immigration, Law, Ethics & Society.
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The idea of our republic is that we elect representatives to effect change.  Seems lately that perhaps we are having greater success when our favorite comedians speak on our behalf   Satire has always played a role in addressing hypocrisy and highlighting the issues of the day. However,  Jon Stewart’s impact on the recent passage of the bill to provide 9/11 first responders with health care benefits transforms the role of the comedian from social commentator to catalyst for change.

There has been much written about Jon Stewart’s role in securing healthcare for 9/11 first responders. While he has declined to comment on the passage of the bill, those who were struggling against what began as overwhelming odds credit the Daily Show’s coverage for “shaming” Congress into action.

“…[S]ome of those who stand to benefit from the bill have no doubt about what — and who — turned the momentum around. “I don’t even know if there was a deal, to be honest with you, before his show,” said Kenny Specht, the founder of the New York City Firefighter Brotherhood Foundation, who was interviewed by Mr. Stewart on Dec. 16.”

New York City Mayor Michael Bloomberg added, “Success always has a thousand fathers,” …“But Jon shining such a big, bright spotlight on Washington’s potentially tragic failure to put aside differences and get this done for America was, without a doubt, one of the biggest factors that led to the final agreement.”

While Jon Stewart often insists that his is just a comedy, fake news show, Jon Stewart and his colleague, Steven Colbert, of the Colbert Report, have taken on the cable news networks and highlighted many of the cultural/legal issues being debated in our country.  (In addition to their nightly pieces, this year brought us the Rally to Restore Sanity/Fear, and other dramatic examples, such as Steven Colbert’s show on which he spent the day along side migrant workers and his controversial trip to Capital Hill to testify about their working conditions.)

Jon Stewart and Steven Colbert are certainly not lone social commentators.  As the momentum builds to legalize gay marriage in view of the repeal of Don’t Ask, Don’t Tell, Jay Leno quips, “What does that say about us as a nation when we believe gay men can now handle armed combat, but aren’t yet ready for the fighting that happens in marriage?”

Whether  the comedic world will have a measurable impact on changing the law remains to be seen; however, clearly the comedians are voicing the views of a significant cross-section of the country regardless of the action or inaction of Congress. In fact, the flurry of Congressional activity in the waning days of the December session during which Don’t Ask Don’t Tell was repealed, The Dream Act failed to pass, and 9/11 first responders were provided with health care benefits evokes the following query.

Is the law a reflection of society’s current values or does the law serve to motivate behavioral change that eventually changes overall societal values?  Like many aspects of law and society, inevitably, the general answer is: it depends upon the circumstances and one’s perspective.

More specifically, it also appears to depend upon who is interested in calling attention to the various cultural issues and values at play. Perhaps instead of continued lobbying on Capital Hill, the students marching in support of the Dream Act should “elect” their local comedians in hopes of making the dream of an education become a reality.

Please Ask, Do Tell: The Senate And Gays in the Military September 23, 2010

Posted by legalethicsemporium in Gays in the Military, Immigration, Law, Ethics & Society, U.S. Constitution.
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Another case of democracy in action. (Or is that inaction?)  The Don’t Ask Don’t Tell policy of allowing gays in the military only if no one knows that they are gay has been the subject of controversy since it was instituted 17 years ago.  It is estimated that at least 65,000 “uncover” gay individuals continue to serve our country.  However, gay soldiers continue to be expelled from the military when their sexual preference is discovered at a cost of hundreds of millions of dollars to train their replacements.   In fact, it has been reported that approximately 1,000 individuals per year are dismissed from the military based upon homosexuality and at least 13,000 have been terminated from military service since the policy went into effect.

The resolution of this issue by a policy change which would allow gays to openly serve in the military is supported by President Obama who called for the change in his State of the Union address.  Mr. Gates, the Secretary of Defense, is supporting the repeal of the policy and  the House of Representatives passed an amendment in May which calls for the repeal of the policy.  On September 9th, a Federal Court in California deemed the Don’t Ask Don’t Tell policy to be unconstitutional.

Okay, so seems like we have all three branches of government in agreement…Well, not quite all three branches….The Congress is not united on the issue.  The House of Representatives passed an amendment, but the Senate has failed to do so.  Actually, the Senate failed to debate and pass the entire Pentagon bill for the first time in 48 years.   It seems that the problem was more of a political battle over what other amendments were going to be attached to the bill, just before the November elections, rather than  the actual issue of gays in the military.

In other words, the failure of the bill to pass seems to be largely a result of the legislative process. For example, The Dream Act, that would allow illegal immigrant children a pathway to citizenship, was going to be attached to the bill and therefore voting for the repeal of the Don’t Ask Don’t Tell Policy would also be a vote for The Dream Act. Different issue and perhaps one upon which some Senators did not want to cast a vote.   And apparently there were  proposed amendments that were going to be excluded from the bill to the discontent of some Senators.   Additionally, there was a provision providing for over 400 million dollars for construction of  an extra engine for an F-35 strike fighter.  That provision might have been passed by the Senate, but if it was included, President Obama was poised to veto bill as the White House believes that it is an unnecessary expenditure.

It gets even more complicated if you go through all the moving parts of this bill and analyze the various November election concerns, but the point is that the politics of the legislative process is what often stymies progress.  Consensus becomes difficult at best and impossible at times because of a process that bundles unrelated issues into one package.  So, for now, the repeal of the Don’t Ask Don’t Tell policy has been stalled in the Senate along with the Dream Act to the frustration of the both the gay rights and immigration reform advocates.   Perhaps we should all “please ask and do tell” the Senate to reconsider its “packaging process” to more effectively play its  role in  resolving issues of concern to all of us–We the People–their constituents.

Focus on the Children? Senator Graham’s Immigration Solution and the 14th Amendment August 12, 2010

Posted by legalethicsemporium in Immigration, Law, Ethics & Society.
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Another spark has been thrown into the immigration debate of late as Senator Lindsey Graham has proposed to amend the 14th Amendment of the Constitution to delete the provision that provides citizenship for everyone born in this country.   The discussion generated by his controversial position has been further fueled by the release of statistics from the Pew Hispanic Center indicating that there are approximately four million children in the United States whose parents are undocumented immigrants.

There is no doubt that our country has allowed millions of undocumented immigrants to reside in our country and there are statistics to support both the benefit of undocumented workers to our economy and other statistics that demonstrate the burden placed on school systems, hospitals, the criminal justice system and other institutions in our society.

However, the central question in the current debate is whether amending the Constitution to prevent birthright citizenship is a viable solution.  First of all, let’s note that it is a virtual impossibility to amend the Constitution. Initiating an amendment to the Constitution in Congress requires approval from two-thirds of both the House and Senate and then the  proposed  amendment has to be ratified by at least three-fourths of the states.  The last significant amendment occurred about 40 years ago when the voting age was lowered to 18 years old.  This amendment was accomplished in reaction to the Viet Nam War because thousands of young soldiers were being drafted and dying in an unpopular war; they had been old enough to fight, but not to vote.

So, most Constitutional scholars would probably tell you that an amendment is not going to happen.  The fact that politicians and advocacy groups are parsing the wording and historical context of the 14 Amendment (i.e. that it was enacted to assure that the children of freed slaves would be citizens and that we didn’t have any immigration laws in 1868 as opposed it is central to our concept of equality for all) appears to be unproductive rhetoric filling the airwaves and internet.

And, let’s assume for a minute that we could deny birthright citizenship to all babies that have been born to illegal immigrants…..What do we accomplish?  Well, to begin with it appears that we will increase our undocumented population by another four million people.  What if we just say “no more.”  Okay, so we have four million children that will remain citizens and will “no more” prevent undocumented people already here from having children or prevent more people from illegally arriving and/or staying in our country?

These are the questions that remain unanswered except by conjecture and political rhetoric.   Anecdotal evidence and Pew Center statistics suggests that people come here primarily for economic reasons and  generally to improve their living conditions, not necessarily to have children.  It is undisputed by folks on both sides of the issues that our immigration system is in need of major reform—Query whether focusing on denying birthright citizenship and attempting to amend a central provision of our Constitution that provides equality to all is the most productive, efficient, American route to travel.

Harvard 1, Miami Dade College 0? The Arbitrary Immigration Score June 23, 2010

Posted by legalethicsemporium in Immigration, Law, Ethics & Society.
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Eric Balderas is 19-year-old undocumented immigrant who arrived in the U.S.with his mother when Eric was 4 years old.  He graduated at the top of his high school class and is studying molecular biology at Harvard on a scholarship.   However, all that he has accomplished was threatened a couple of weeks ago when he attempted to board a plane  to Boston from his home in Texas  having lost his Mexican passport.  Eric was detained by Immigration officials for five hours and released with a court date for a deportation hearing. However, after tremendous support from friends, advocacy groups and Harvard, the U. S. Immigration and Customs Enforcement decided not to pursue deportation.

Leslie Cocche, an 18-year-old, undocumented student at  Miami Dade College who is studying criminal justice , has not been so fortunate.  She was stopped and questioned at a Tri-Rail Station on her way to school in March. The Immigration official cuffed and arrested Leslie who was placed in a detention center for 11 days–subsequently her sister and parents have received deportation papers.  Leslie was brought to the U.S. from Peru when she was 10 years old and has been an honor student throughout school and performed over 400 hours of community service during high school.

So, why the discrepant treatment and what should be done about the hundreds of thousands of undocumented students that have come to this country with their parents?     The DREAM Act is a legislative proposal designed to pave a way to citizenship for students who were brought here as minors by their parents and  meet certain other requirements which include attending college or enlisting in the military.  The Act has stalled in Congress and frustrated proponents who see it as a way to solve the undocumented student dilemma, benefit the country and support motivated youth who will contribute to our country.  Opponents assert that these students should not be rewarded for the violations of the law committed by their parents and that the rule of law requires that we apply the law equally to everyone.

The issue is  further complicated by the inconsistent application of immigration law depending upon an individual’s location.  This inconsistency was recently documented in a study done at Stanford that reviewed immigration asylum cases.

So, regardless of which side of the issue that you may support, you still have to wonder why Eric was detained for 5 hours and Leslie was detained for 11 days….And why has Eric’s deportation been indefinitely deferred, while Leslie and her family are scheduled for a hearing  to determine whether they will all be deported to Peru?

U.S. v Arizona: A National Identity Crisis? June 20, 2010

Posted by legalethicsemporium in Immigration, Law, Ethics & Society.
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Arizona’s new immigration law, SB1070, was in the news again this week when Secretary of State, Hillary Clinton, while touring South America, responded to concerns about the law by indicating that the Justice Department is going to file suit against Arizona.   The Arizona law empowers police officers to require individuals to produce their immigration papers when those individuals are lawfully stopped by the police for other reasons.   The law has ignited a firestorm of controversy as it  implicitly requires anyone in Arizona who may “appear” to be there illegally to carry  proof of residency or citizenship at all times.

The proponents of the law believe that it will be another way to stem the tide of illegal immigration which disproportionately impacts their state.  The opponents are concerned about the application of law which they believe invites ethnic profiling and places an unequal  burden on a select group of legal residents and citizens.  (In Florida, there is much concern that attempts to bring the law here will create chaos in cities like Miami in which there is a huge, diverse legal population who would have to carry passports or be arrested.)

Secretary of State Clinton’s comments reflect another issue: the Constitution of the United States provides that Congress is responsible for enacting and enforcing immigration laws. (See Article I Section 8) Additionally, the Constitution provides that when there is conflict between state and Federal laws, Federal laws prevail.  (See Article VI) So, therein lies the foundation for the Federal government to object to Arizona’s law.

These are some of the basic legal issues underlying the emotional overlay of the Arizona law.  The Arizona law has served to focus attention on a complicated and controversial set of issues revolving around immigration in our country.  Depending upon which source is consulted, there is an estimated 12 – 20 million illegal immigrants in our country.  We have not devoted the resources to secure our borders or enforce our immigration laws to the fullest extent possible.  Many people enter our country legally and then over stay their visas with little repercussions.  So, there is ongoing debate as to what to do about the illegal people who reside here and how to prevent a growing problem.  The states most impacted are frustrated with the Federal government.  The Federal government has attempted and failed to pass comprehensive immigration reform in recent years, but remains the Constitutional overseer and needs to maintain uniformity in the application of the law throughout our country.

So, what is the solution?  National identity cards for all citizens?  Amnesty for those already here?  Militarization of our borders?  The questions are fairly easy to identify……What do you think are the answers?

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