Texas State Board of Education... again

"In the first place God made idiots. This was for practice. Then he made school boards."
...Mark Twain, 1897

A couple of brief biographies…

David Barton:

• Dominionist religionist politician from Missouri
  
  
• Founder of WallBuilders, a religious advocacy organization formed in 1989 that is opposed to the separation of church and state
  
  
• Served as vice chairman of the Texas Republican Party from 1997 to 2006
  
  
• Worked with the Republican National Committee in 2004 to recruit conservative pastors into the GOP

History and Bio:

• Spoke at two 1991 events sponsored by groups with ties to white supremacists. Later in a letter to the Casper Star Tribune, Barton claimed that he had not known the groups were “part a Nazi movement."
  
  
• The WallBuilders Web site suggests the National Association of Christian Educators/Citizens for Excellence in Education as a helpful resource. This organization campaigns for all Christian parents to remove their children from public schools, which the group calls places of "social depravity" and "spiritual slaughter" for Christians.
  
  
• He admits that he has used in his writings and speeches nearly a dozen “quotes” he attributes to the nation’s Founders but for which he can cite no primary source evidence.
  
  
• He argues our law should be based on the Bible, saying that income taxes, capital gains taxes and inheritance taxes violate biblical mandates.
  
  
• He diddles with and masturbates the English language and the intent of the 1797 Treaty of Tripoli.
  
• He uses the flawed “United States was founded as a Christian nation argument,” and claims that there is a “war on god” in this country.
  
  
• He has advocated for the impeachment of judges whose rulings are unfavorable to the right (school prayer, etc.).
  
  
• He has stated that SCOTUS rulings that various state sodomy laws are unconstitutional will result in the legalization of public sex, prostitution, polygamy, and promotes homosexuality in schools.
  
  
• His couches the teaching evolution in public schools as a “death struggle between civilizations,” threatening the biblical foundations for protecting freedom.
  
  

Rev. Peter Marshall:

• Holds a seminary degree from Princeton
  
  
• Operates Peter Marshall Ministries in Massachusetts
  
  
• Sells Christian-themed instructional materials for homeschoolers

Quotes (all found on the web site):

• “it is impossible to restore America to its traditional moral and spiritual foundations unless we recover our original founding vision, and the truth about America's Christian heritage.”
  
  
• “Wouldn't it be far better for them [children] to have a consistent and Biblical worldview that will enable them to grow, not only in knowledge and learning but in moral and spiritual stature, to the point that even before they finish their education they will be committed to being "salt and light" in our society, and helping to bring America back to God?”
  
  
• “Though some may object to applying the word ‘wicked’ to the Obama Administration, my fear is that as the months ahead unfold we will consider the word increasingly appropriate.”
  
  
• “I find it utterly beyond belief that any person who calls himself or herself a Christian could under any circumstances vote for a candidate [Obama] that supports abortion on demand and special rights for homosexuals! How, in the name of all that is holy, can a Christian vote for someone that takes a position directly contrary to the explicit Word of God? How can a Christian believer ever cast his or her vote for someone that God Almighty would never vote for? Especially in light of the fact that the nation is already under God's judgment precisely because of these sins, as well as others. The Biblical equivalent of this would be the people of Israel choosing judges to rule over them who were in favor of Baal-worship.”
  
  
• “These people [Obama administration] want to re-make America in their own image. That will entail throwing out traditional American Bible-based values, of course, in spite of their claim that they are exhibiting a Biblical type of compassion for homosexuals, lesbians, transgendered people, etc.”
  
  
• “If, as I suspect, the financial meltdown is part of His [god] judgment on us because of our growing moral and spiritual rejection of His standards, then He may very well let us sink into severe straits in order to bring us back to Himself. Perhaps we will not come to repentance about abortion and homosexuality and pornography and gambling and greed and sexual immorality and all the rest of it until the economy is so bad that we cry out for mercy. I hope it doesn't come to that, but one way or another, this nation has got to come to repentance about our moral and spiritual condition.”
  
  
• “the public policy viewpoints of the majority of the American people are religious at base. These are very much at variance with the viewpoints of the secularists in the culture wars. Up until now, at least, these secularists have been strongly influencing the policy positions of the Democratic Party. The viewpoints of both conservatives and Christians are still the viewpoints of the majority of the American people. We Christians have not lost the culture wars---not yet, although the battle rages. No political candidate can succeed in running for national office in this country unless he or she is able to tap into that basic religious worldview, and use it as a base to mount a winsome, inspiring, and winning campaign. Woe to the candidate who does not understand this."
  
  
• “Was enough finally enough for the Lord. Did He allow Katrina as a judgment on the wickedness and decadence of New Orleans? Well, what do you think? To borrow the saying from Fox News, "we report, you decide.”
  
  
• “In allowing all this destruction to come upon us, or perhaps even in sending it, Almighty God is trying to get our attention. In previous commentaries on this subject I have said that this nation, which He founded to exert moral and spiritual leadership in the world, has turned its back on its Christian roots. By officially removing the Ten Commandments from our courthouses, by officially stamping with the approval of the judicial system the homosexual behavior that God calls an abomination, and by continuing to officially allow the slaughter of our unborn children, this nation is officially rejecting God. He does not take any of this lightly.”
  
  
• “Is there a connection between these fires and God? There certainly could be. Consider the fact that there are numerous passages in the Bible that deal with fire as an instrument of God."
  
  
• "America is a nation founded on the Bible by people who had a vision and a calling from God to build a society based on the commandments of God, which exclude the deviant sexual immorality now being officially endorsed by the State of California. Could it be that God is a bit upset by all that? I have long predicted that the whole package of deviant sexual behavior, as well as homosexual marriage, will become commonplace in America. The only thing that can stop this trend is the Third Great Awakening---a major, society-changing spiritual revival of true Christianity. That has not yet occurred, and unless it does, you may rest assured that there will be further devastations and upheavals in our land.”
  
  

One must wonder what in the heck is Mule Breath talking about in the above diatribe. Why would I go into such great detail about two obviously partisan and deluded men? Well, it is because these two gents were appointed by Texas State Board of Education Chair Don McLeroy, as subject matter experts while the Board considers changes to certain areas of approved curriculum. Having failed in his efforts to get creationism into state science textbooks, McLeroy is making another run at it by attempting the same idiocy with the Social Studies curriculum.

The gentleman was elected to his position in 1998, with strong backing from Texas secessionist Governor, Rick Perry. The Texas Legislature seems to be just about fed up with foolishness from the Governor's office though, as it looks like confirmation for McLeroy’s reappointment has been blocked. This is the only most recent indication of the Lege's displeasure with Perry’s antics, as a couple weeks ago they voted to slash his budget to almost nothing.

Maybe there is hope for science in Texas after all.

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Michelle Bachmann provides us with such great material.
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I will actually be sad to see her political demise, but the inevitable will occur and Minnesota’s 6th district voters will eventually come to their senses. Only a matter of time.

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Yeah... You Bet

Either the video itself is a hoax or there are some seriously ignorant people out there.

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The Life… and Potential Demise of the Exclusionary Rule

Fourth Amendment not faring well in the Roberts Court

In the past I’ve shared thoughts regarding the Savana Redding Fourth Amendment case [HERE] and [HERE], and more recently [HERE]. Six long years after young Redding was strip-searched and humiliated by Safford, Arizona school officials, the Roberts Court finally heard arguments in her case.

Questions raised by this case are many

Is a minor child, a student in a public school, protected by the 4A?

If so and school officials are shown to have violated her 4A protection, are they individually or collectively liable?

Would any evidence produced from such a search be admissible, or would it be excluded?

Under the precedent afforded by the Exclusionary Rule, would the case be reversed?

The Exclusionary Rule was established in the 1914 case of Weeks v. United States, where evidence used to convict was thrown out because a federal agent failed to obtain a warrant prior to entering the home of Freemont Weeks in a search for an illegal gambling operation. Six years later, in Silverthorne Lumber Co. v. United States, SCOTUS established a precedent known as the Fruit of the Poisonous Tree, the logic of which says that if the source of the evidence (an illegal search) is tainted, then anything gained is tainted as well.

Therefore, if the Court rules that Redding was protected under the 4A, then any evidence they might have found in her clothing (they found none) could be excluded.

... or maybe not.

The Exclusionary Rule has been under attack since its inception. Neither the Weeks nor Silverthorne decisions were unanimous, and in Silverthorne Chief Justice Edward Douglass White strongly dissented. The rule has endured numerous tests since, but since 1980, the assault has gained momentum.

Reagan Revolution and a Test of our Constitution

The first sustained assaults came following the 1980 inauguration of Ronald Reagan, with Attorney General Edwin Meese leading the charge. Two current Justices, Samuel Alito and Chief Justice John Roberts, both served under Meese, and both worked to overturn the rule. Roberts authored a 1983 memo, titled “The Campaign to Amend or Abolish the Exclusionary Rule.” Justice Alito, on his application to work under Meese, wrote that his interest in law had been motivated by his disagreement with some criminal procedure decisions by the Warren Court.

We must ask, just what is the argument against the rule? Certainly not that it lacks effectiveness in securing 4A rights, for it has done an admirable job of that. Those who would abolish the rule say that when evidence is excluded, criminals go free. While this may be true to some extent, case reviews indicate it is not the problem Roberts and Alito would have us believe. Furthermore, if 4A rights had been considered prior to the illegal search, no evidence would have been found. The rule has survived thus far because it has proved essential in securing constitutional rights, protecting the amendment more than the criminal.

Momentum Building

Roberts and Alito are undeterred, and they are joined by Clarence Thomas and Antonin Scalia in the effort to abolish the rule. All that is required is one more vote. Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer have historically supported the rule. Anthony Kennedy walks the line and could go either way on most cases, but on a question of precedent he is more likely to let it stand.

So how does poor Savana fare with all this? Not well, it seems. Savana got her day in court and tested the validity of policies allowing the school district to humiliate her on scant evidence, but when her case came before SCOTUS, the tone of questioning did not sound favorable. Even Souter and Breyer sounded like doubting Thomas. If this had happened to an adult, the decision would be a resounding thumbs down, but we won’t know if minor children will be extended the same rights until late in June when the Court hands down a decision.

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Wingnuts in Love

Right wing blogger Pamela Geller [Atlas Shrugs] has offered up some really bizarre stuff over the years, and on April 1st, 2009, Geller did it again. In an interview [20 minutes long] with Winger-in-Chief, Michelle Bachman (whom I have written about before), Geller just cannot seem to gush sufficiently in her praise of the Michigan Republican… and Bachmann’s revolutionary, anti-Obama ranting just gets nuttier. Geller’s choice of dates to post this interview seems most appropriate.

What would y’all think of a Palin / Bachmann ticket in 2012?

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The U.S. Might be Better off if Texas Seceded

Texas Rep. Joe Barton is the ranking Republican on the House Energy & Commerce Sub-committee. Smokey Joe (as he is known in these parts) is infamous for his defense of polluting Ellis County cement plants. The "Smokey" is in reference to the stuff that belches from the huge stacks above the kilns. Barton is also known to be in the pocket of the oil companies, and he is recognized as one of our dimmest bulbs.

Yesterday Ole Smokey smugly tweeted a blurb in which he claims, “I seemed to have baffled the Energy Sec with basic question - Where does oil come from?” He is making reference to the following exchange with Nobel Prize winning geologist and Energy Secretary Steve Chu. Barton is so proud of himself that he posted the video to YouTube.



For some unknown reason, Joe thinks he won the round, but it is pretty obvious who was stumped. Dr. Chu was having a difficult time containing himself long enough to formulate an answer simple enough for Barton’s child-like mind to comprehend. Some of Joe’s confusion, no doubt, is rooted in his belief that the Earth is only 6,000 years old… and that human children once frolicked with little dinosaurs.

All I can hope for is that I live long enough to see Texas cleansed of such ignorance.

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Chicken or Egg

The following is summarized from Ken Miller’s Finding Darwin’s God, pages 208-219. Hopefully I did not alter the context or meaning of Mr. Miller’s message with my snips.

“This [quantum uncertainty] is something biologists, almost universally, have not yet come to grips with. And its consequences are enormous. It certainly means that we should wonder more than we currently do about the saying that life is made of “mere” matter….

This means that absolute materialism, a view that control and predictability and ultimate explanation are possible, breaks down in a way that is biologically significant. It means that after we have obtained understanding of so much of the world around us, the ultimate mastery of even the tiniest bit of matter in the universe will always elude us….

[Thus] The core assumptions supporting the “scientific” disbelief [atheism] of the absolute materialist are wrong, even by the terms of science itself…

What matters is the straightforward, factual, strictly scientific recognition that matter in the universe behaves in such a way that we can never achieve complete knowledge of any fragment of it, and that life itself is structured in a way that allows biological history to pivot directly on these tiny uncertainties. That ought to allow even the most critical scientist to admit that the breaks in causality at the atomic level make it fundamentally impossible to exclude the idea that what we have really caught a glimpse of might indeed reflect the mind of God…

…In the final analysis, absolute materialism does not triumph because it cannot fully explain the nature of reality.”

All very interesting indeed, considering that Miller is certainly not in the creationist camp. This does, however, open up an interesting debate. Which came first? The chicken… or the egg.

Plato in The Laws, book X, noted that "all things do become, have become and will become, some by nature, some by art, and some by chance," and argued that either mind comes before matter or matter comes before mind. If mind came first, then the universe is a work of art by a creator. If matter came first, then the universe is the result of a dice toss.

The current theory among physicists states that all things, including energy, matter and time, came into being at the instant of creation. Miller, in his book, raises the question of random chance creation vs. design by God... and argues both sides.

If all things (or the potential for things) appeared at creation, then the Laws of Nature did not exist prior to creation. If we transpose the Laws of Nature for the Mind of God, I have no problem accepting the premise of Miller’s work as it would be in line with current scientific understanding.

But this necessarily means that God did not exist prior to the creation of the universe. So if God did not exist before creation… how can God be the creator of the universe?

So who created God?

The book is a good read. I would recommend it for both believers and non-believers, because it will make you think.

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Local News with National Impact

Creationist group says state rejection of degree plan violates its civil rights

April 21, 2008. The Dallas Morning News, in the Metro Section, carried this story of what is certain to become a First Amendment case of Supreme Court stature. If it makes it that far.

The Dallas based Institute for Creation Research, which has been offering an unaccredited Master of Science program in Creation Science in San Diego, California for the past 27 years, moved to Dallas in 2006. Approval was required from the state board that approves degree programs for the institute to continue offering the program. The application was denied.

In an April 24 ruling, the Texas Higher Education Coordinating Board rejected the institute’s degree program because it did not meet state academic standards. The institute, claiming THECB violated its civil rights, has filed a lawsuit [HUGE PDF download, but worth the read]. There is an article on the institute’s web site, in which the author, James J. S. Johnson, J.D., shouts “Censorship!” Personally, I fail to see where censorship would enter into the argument, but Johnson is a regular contributor to the site and makes other weird arguments.

The lawsuit, filed in U.S. District Court in Dallas, alleges that THECB rejected the degree program because of the institute's claim that scientific evidence shows the earth is only 6,000 years old, which is in conflict with accepted science. In papers filed with the court, the institute claims "The monopolistic realities of the science education market in Texas (and in America generally) would limit creationist learners to science education opportunities from evolutionist graduate schools." It further says that the institute is "the only graduate school which specializes in creationism-informed science education."

For its part, THECB is concerned that the proposed master’s program would not properly prepare future classroom teachers to teach established science standards in Texas public-school classrooms. The board would not comment further, stating that the case is under litigation.

The Institute for Creation Research was formed in 1970 by the late Henry M. Morris, a Dallasite known as the father of creation science. Religionists claim creation science as a theory that centers on a philosophy in which science and religion both indicate that the Earth and all living things were created by an intelligent being. The Morris biography is one of an individual intent upon finding biblical justification for everything in nature, and either ignoring anything which did not agree with his preconceived ideas, or creating more myth as explanation.

It is good that the board, consisting of educators and scientists, has declined the application, but the THECB may be out-maneuvered and the lawsuit become moot. Creationists members of the Texas Legislature are making an end run in an effort to aid the institute’s efforts. Rep. Leo Berman, R-Tyler, has introduced a bill [HB-2800, PDF download] that would exempt the institute from state rules that accredited, degree-granting universities must follow.

So here we have another effort, in the never-ending onslaught on reason, by religionists to force their supernatural worldview on the citizens of Texas. If the Berman bill passes muster, or if the lawsuit makes it to the Roberts’s court, the result is likely to be a degradation of educational standards in Texas classrooms. With Texas being among the top three purchasers of textbooks of any state, this will not bode well for the rest of the nation.

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UPDATE: I should have checked before I posted, but I did not. There are other, more eloquent pundits, blogging on this story. Please view the following:

Timothy Sandefur's Freespace (this is really good, and you really should read it)

The Dallas Observer

Skepacabra, which offers other interesting links

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You Knew It, Right?

Federal investigators have launched 20 (say that again. 20!) investigations into possible securities fraud, insider trading, and tax violations in the $750-billion financial bailout program, the Los Angeles Times reports. The cases mark the first wave on probes into possible corruption in the TARP program, and the total fraud involved could reach the billions.

You just knew this was going to happen.

The Right gets it Wrong Again

The scandalously left-wing Think Progress reports on the following:

This morning, in an interview with MSNBC morning anchor Meredith Vieira, Newt Gingrich got it wrong again. The following is an exchange regarding a question on the Obama/Chavez meeting, the handshake and smile:

VIEIRA: But do you think he should not be trying to mend relationships with other world leaders?

GINGRICH: How do you mend relationships with somebody who hates your country, who actively calls for the destruction of your country and who wants to undermine you?

VIEIRA: But we certainly have mended relationships with countries that have hated us in the past. Russia comes to mind, China comes to mind.

GINGRICH: But we didn’t rush over, smile, and greet Russian dictators. We understood who they were.

Well, old Newt is a former history professor and should know better, but obviously knowing better and speaking truth don’t connect for Mr. Gingrich.



The Nixon photo dates to 1973. Shrub’s photo with Putin was taken June 16, 2001. In fact, the only American President not photographed grinning with a Ruskie in hand over the past 40 years is Jimmy Carter.

Watch the video here:

Visit msnbc.com for Breaking News, World News, and News about the Economy

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Oh Good Grief

All this hand wringing over a report that the Bush administration requested… spewing from a man who has called for political assassinations!

Robertson has little room to complain about extremists.

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In Defense of Freedom, Part VIII

I’ll be skipping over Amendment VII because it needs little interpretation, and 7A case law is sparse. Basically, 7A ensures similar rights to a trial by jury in civil proceedings as 6A does for criminal cases; so we will move on to the much more interesting Amendment VIII – sixteen words that mean a great deal.

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

These words bear a not-so-coincidental likeness to a provision in the English Bill of Rights, and we have a British fellow by the name of Titus Oates to thank for this enumerated right. Mr. Oates, along with another fellow by the name of Tonge, fabricated the Popish Plot, which stirred up a bunch of anti-Catholic hysteria and resulted in the death or imprisonment of several people. Oates, a Baptist, alleged a Catholic plot to overthrow the British Crown and assassinate King Charles II. Charles reacted swiftly and sternly, and eventually 15 men were executed due to the effects of Oates’ concocted plot.

The truth eventually came out and Oates was arrested, tried and convicted of perjury. He was tossed out of Whitehall and given a heavy fine. It might have ended there except that Oates couldn’t keep his mouth shut. He denounced just about everyone, including the King’s brother, the Duke of York, who a few years later acceded to the throne as King James II. James had Oates arrested again, tried for sedition, and sentenced to life in prison and annual pillory.

Although the British commons recognized the damage he had caused, Oates was widely regarded as somewhere between a buffoon and simple trouble maker, and the punishment he received was viewed as excessive. Thus a few years later Parliament introduced and passed into law the English Bill of Rights containing provisions prohibiting Excessive Bail, Excessive Fines, and Cruel and Unusual Punishment. Oates was eventually released, and we can thank him for the fact that our eighth amendment contains the same provisions as the English Bill of Rights.

In regard to the Excessive Fines clause, SCOTUS gives lower courts wide latitude. Fines imposed by a trial court judge or magistrate will not be overturned on appeal unless the Supremes feel there was abuse of discretion in assessing them. In Water-Pierce Oil Co. v. Texas (1909), we see that SCOTUS was loath to overturn the lower court decision, which was challenged under the discretionary standard, but in United States v. Hyppolite (1995), the court applied the standard by ruling that appellate courts can overturn a fine that is “arbitrary, capricious, or so grossly excessive as to amount to a deprivation of property without due process of law".

Trial court judges have less latitude under the Excessive Bail clause. The purpose of bail is to ensure the defendant will return for trial, and lower courts are required to consider several factors when setting bail;

1. seriousness of the offense;
2. weight of evidence (provability of the case);
3. ability of the accused to pay the bail;
4. defendant’s ties to the community in which the case will be prosecuted; and
5. liklihood the defendant will "jump bail," or flee from prosecution.

Lower courts are required to set bail at a reasonable amount because an unreasonable amount would be onerous, and the defendant is presumed innocent until proven otherwise. However, the courts understand that they are obligated to protect society from potential harm inflicted by dangerous defendants. SCOTUS has permitted lower courts to deny bail for defendants who could potentially create dangerous circumstances if released.

The Cruel and Unusual provision of 8A has provided more case law than the first two provisions, especially due to the more modern interpretation of the Due Process and Equal Protection clauses of the Fourteenth amendment currently in vogue with the courts.

8A requires that any punishment imposed by the government be commensurate with the offense committed by the defendant. A sentence that is disproportionately harsh will be overturned on appeal. Some examples of what SCOTUS considers disproportionate can be found in a pair of 1977 findings of the Burger court, Coker v. Georgia and Eberheart v. Georgia, in which the court held that the death penalty is disproportionate punishment for the crime of kidnapping and rape when the victim was not killed. Both cases were decided using Furman v. Georgia, a similar case from five years previous, as precedent. The rulings gutted the Georgia law.

SCOTUS has also ruled that sentences which are “inhuman, outrageous, or shocking to the social conscience” are considered to be cruel and unusual, and grounds for reversal. The Court has never really provided any meaningful definitions of those characteristics, but some cases speak for themselves. The Georgia Supreme Court, in Whitten v. Georgia (1872), offered that the intention of 8A was to prohibit such punishments as castration, quartering or burning at the stake. In a later case (re Kemmler, 136 U.S. 436, 10 S. Ct. 930, 34 L. Ed. 519 [1890]), the court wrote that the Cruel and Unusual clause prohibits “crucifixion, breaking on the wheel, disemboweling, [and] hanging in chains” because they “involve torture and lingering death." Electrocution as a means of execution was specifically allowed in Kemmler because, the court said, it did not seem to involve "more than the mere extinguishment of life."

It seems that Kemmler is brought up in many decisions involving death penalty cases, and case law is abundant, bit since I’m already over 900 words I’ll discuss that topic in Part IX.

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This is Funny

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Blogroll Addition

Found a new blog that I like, thanks to a post by Misfit. Hat Tip to the good Comrade. My Corner to Vent seems to be right up my alley. Terrant, the author, posts the following:

I do not swear allegiance to any political party. I find that democrats and republican do not represent the average American. The only real difference between the two is that one pretends to actually care about the plight of the little guy.

I do not consider myself to be liberal nor conservative. I believe that both sides have good ideas and bad ideas. I feel that a middle of the road approach is the best. I feel that government should let society and industry advance at its own pace with minimal interference and within the confines of what the Constitution allows. I do believe that everyone should be treated equally by the government. I do not believe that any one group should deserve any special treatment over the others.

I do not tolerate politicians that flat out lie to me or are blatantly hypocritical. I consider partisan politics to be a poison that prevents the best solutions to problems from being truly considered. I believe in pragmatic solutions to problems; not ones driven by an ideology.

Sounds good to me.
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Selective Memory

In 2008, the FBI released a report titled White Supremacist Recruitment of Military Personnel Since 9/11, finding that although military veterans don’t make up a large percentage of “white supremacist extremists,” these veterans have taken on leadership roles in the movement. The report further warned that, while the hate groups had stagnated and been in decline for several years, new groups made up of well-trained veterans could crop up, and said the groups have "the potential to reinvigorate the movement."

On April 7, 2009 the Department of Homeland Security issued a comprehensive threat report [PDF] titled Right-wing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment. The report includes a subsection titled “disgruntled military veterans,” in which it references and directly quotes the 2008 report. The American Legion and conservative commentators, who paid no attention to the 2008 report have found reason to denounce the 2009 report, calling it politically motivated and slanderous toward veterans.

With David Rehbein, National commander of the American Legion, leading the charge, America's second largest veterans group accuses the Obama administration of unfairly painting military veterans as right-wing extremists. Rehbein is particularly upset because of a mention in the report about Timothy McVeigh.

On Wednesday, John Sommer, a colleague of Rehnbein’s, appeared with FOX News host Greta Van Sustren. The two spent time raking the report over the coals. Gretta said, among other things, “It's slanderous. It's insane. It's insulting, it's all those things.”

Michelle Malkin titled an April 14 blog report Confirmed: The Obama DHS hit job on conservatives is real, in which she states that the report is “one of the most embarrassingly shoddy pieces of propaganda I’d ever read out of DHS. I couldn’t believe it was real.”

The 2008 report discussed all the same material and mentioned McVeigh, but the American Legion didn’t notice. Gretta didn't seem to think the Bush administration report was insane, and Michelle was apparently not embarrassed.

What a difference a single year can make.

HT Politico

UPDATE:

FOX Newsperson Catherine Herridge has this morning revealed that the reviled report, as well as an earlier report [PDF] focusing on left wing extremists, was compiled at the request of the Bush administration.

HERRIDGE:

"Well this is an element of the story which has largely gone unreported. One looks at right-wing groups, as you mentioned. And a second is on left-wing groups. Significantly, both were requested by the Bush administration but not finished until President Bush left office."

HT Think Progress

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Teabag Americans

Republicans are much better than Democrats in the faux populism field, and they’re real good at using and abusing the middle classes to advance the cause. Take for instance the Reagan Revolution, Gingrich’s contract on America, and more recently… Sarah Palin. So today’s Tax Day Tea Parties are really nothing new. These events are supposedly of a grassroots nature, but actually promoted and funded by the usual suspects.

As Paul Krugman's column in the Sunday paper points out, Republicans have historically been over the edge, even crazy, and they are particularly good at duping the middle class. What were once called Dittoheads are now known as memes, but they still rant and make up weasel word phrases for those things they stand against – usually taxes. Yesterday’s bad old liberal is today called socialist, and the behavior we are seeing today with these tea parties is just SOS-DD.

So, here come the teabaggers; a supposedly grassroots effort by down home folks, but as Krugman says, there is little organic about this grass. Astroturf would be a better description. Krugman points to FreedomWorks, a decidedly well funded (by corporate America) right-wing outfit, as having more than a little bit of doings about these tea parties. Further, old Fair and Balanced FOX News is heavily promoting the circus, with Sean Hannity, Glenn Beck, Neil Cavuto, and Greta Van Susteren all slated to broadcast live from various parties, act as celebrity MC’s, and make speeches. FOX analyst Newt Gingrich will be in New York. Glenn Beck hosted a $500 a plate fundraising dinner for this Astroturf effort. Even Joe the Plumber will be at one of the shows.

I’d bet most of the folks participating in these events couldn’t give you a good definition of socialism, and might even be surprised at what they’d find in the dictionary.

Regardless, the people are being led like sheep. The original tea parties were less about taxes and more about protesting against the unfair practices of one of the largest corporate entities at the time, the East India Company; something the corporate sponsors of our modern tea parties fail to tell the participants. These sponsors, and FOX News, seem to rely on ignorance of history. But then forgetting the past and rewriting history is nothing new for those guys. They make a living off of it.

ADENDUM - Just found these stats:

From April 6 to April 13, FOX News featured 20 segments on tea parties and aired 73 in-show and commercial promotions. FOX News repeatedly described the events as "FNC Tax Day Tea Parties." Of the programs, Your World with Neil Cavuto featured the most segments on the protests with at least seven. Including weekend editions, Fox & Friends and America's Newsroom came in second with at least four segments each. Hannity featured the most promos during its hour (12), while Your World and Glenn Beck each showed at least eight promos, five in-show. The study also found that at least nine of the 20 segments and 40 of the 73 promos aired April 11-13.

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Teabaggers Must Need Direction

We figured it out on our own in the 60's. Didn't have You Tube.

In Defense of Freedom, Part VII

The Sixth Amendment preserves the rights of an accused to a speedy and public trial, by an impartial jury of the area wherein the crime is alleged to have been committed; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him and to have compulsory process for bringing his witnesses to court, and to have the assistance of counsel for his defense.

The history of each of these points is rooted in some previous tyranny and soaked in the blood of history. An early step toward despotism has historically been the establishment of rigged courts and stacked juries, doing what is “patriotic” at the time. The 6th amendment protects the accused from well meaning but misguided authority, as well as protecting society from despotism.

The landmark 6A case is Miranda v. Arizona. Ernesto Miranda was a Mexican immigrant living in Phoenix, Arizona, in 1963. He was arrested after a crime victim identified him in a police lineup, charged with rape and kidnapping, then interrogated for two hours while in police custody. The interrogators did not inform him of his 5th amendment right against self-incrimination, or of his 6th amendment right to the assistance of an attorney. He confessed in writing, including a statement acknowledging that he was aware of his right against self-incrimination. This confession was used in court and Miranda was convicted of all charges and sentenced to 20 to 30 years in prison on each count.

The defense appealed to the state Supreme Court, arguing that Miranda’s confession should have been excluded because he had been denied an attorney during the interrogation and had not been informed of his rights. The police officers involved admitted that they had not given Miranda any explanation of his rights, but argued that because Miranda had been tried and convicted of a past crime, he therefore must have been aware of his rights. The Arizona Supreme Court denied his appeal and upheld his conviction.

The 5th states that no person "shall be compelled in any criminal case to be a witness against himself..." The 6th states that, "In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." The Miranda case opened a central question: What is the role of the police in protecting the rights of the accused, as guaranteed by the 5th and 6th amendments? In 1964, SCOTUS ruled that when an accused person is denied the right to consult with an attorney, his or her 6A right to counsel is violated. In the similar but less important Escobedo v. Illinois (1964), the court ruled that because Escobedo's request to consult with his attorney had been denied and because he had not been warned of his constitutional right to remain silent, his confession was inadmissible.

SCOTUS had previously dealt with these questions in Brown v. Mississippi (1936), which saw the development of the “test of voluntariness”, ruling that a coerced confession could not be used in a court of law. In Gideon v. Wainwright (1963), the court ruled that persons accused of felonies have a fundamental right to an attorney, even if they cannot afford one, thus establishing the obligation of the state to provide court appointed counsel.

[A sidebar on Gideon: This is one of the rare cases in which SCOTUS was undivided. The ruling was unanimous.]

Parallel to Miranda the court heard three similar cases; Vignera v. New York, Westover v. U.S., and California v. Stewart. The court combined the four cases, and since Miranda was listed first among the four, the decision came to be known by that name. Thus we see the Miranda warning being administered on all the cop shows.

The next year, in Duncan v. Louisiana (1968), the court ruled that the state of Louisiana denied Duncan his 6A right to trial by jury, which the court maintained “constitutes a fundamental component of the country's justice system”. Duncan represents a turning point in SCOTUS opinion, marking the first effort to fully apply 14A argument to the original 10 amendments.

Representing a huge test of the 1st, 4th, 5th and 6th amendments, the 2001 USA PATRIOT Act gave the Attorney General power to hold a non-citizens in detention indefinitely if government attorneys have “reasonable grounds to believe that the alien” is engaged in any “activity that endangers the national security of the United States” without any criminal conviction. Since SCOTUS had previously held that the 6A safeguards applied to non-citizens, the Patriot Act is in direct conflict with the Constitution, and the challenges have been manifold.

In the ongoing Rothgery v. Gillespie County (Texas) (2008), the court is considering at what point the state becomes obligated to provide counsel for the accused. Walter Rothgery maintains that his 6A rights were violated when he was arrested and then released on bail, then re-arrested and held for three weeks without benefit of counsel. Rothgery claims he would have been released if counsel had been promptly provided to him. Gillespie County argued that suspects could be denied counsel until a prosecutor becomes directly involved in the case. Based upon previous court rulings, Rothgery should prevail.

As Sonny & Cher might say, The Beat Goes On, and the testing of our Constitution is never-ending. Red light and speeding cameras offer a new test, as one must ask just who is the witness, and how may the accused compel the witness to court? Since municipalities are claiming these citations to be administrative and not criminal, they are holding the actions to be outside of the scope of the 6th, but cases are slowly being brought before the courts. Time will tell.

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Zero Tolerance: More on the Fourth Amendment Redding Case

From the American Constitution Society for Law and Policy, this relates to my previous posts [HERE, AND HERE] on the Savana Redding strip search case. It adds further fuel to the fires of protest against Zero Tolerance.

The Fourth Amendment and Strip Searches in the Public Schools

By Susan A. Bandes, Distinguished Research Professor, DePaul University College of Law, and author of a new ACS Issue Brief, "The Roberts Court and the Future of the Exclusionary Rule".

In Safford Unified School District v. Redding, the Supreme Court will consider whether middle school officials violated the Fourth Amendment by conducting a strip search of a thirteen-year-old girl for prescription-strength ibuprofen.

In 2003, Savana Redding was an honor student at Safford Middle School. She had no prior disciplinary record. When school officials caught her classmate Marissa with prescription drugs and asked her where she’d obtained them, Marissa blamed Savana Redding. Acting on this uncorroborated assertion, the assistant principal directed his assistant and the school nurse to order Redding to disrobe. She was told to strip to her underwear, to pull out her bra and move it from side to side, and to open her legs and pull out her underwear. The search did not yield any ibuprofen or other proscribed substance. Redding did not return to school for months after the
search, and eventually transferred to another school.

The Ninth Circuit Court of Appeals, sitting en banc, held that the search violated the Fourth Amendment. The Ninth Circuit reached the right result on the Fourth Amendment issue, but its reasoning raises concerns.

In New Jersey v. T.L.O., the Supreme Court held that although the Fourth Amendment generally requires a warrant and probable cause for a search, students may be subjected to warrantless searches as long as two conditions are met. The search must be justified by reasonable suspicion and, once initiated, the search may not be excessively intrusive in light of the age and sex of the student and the nature of the infraction. In other words, like any other search, the search of a student must be both justified at its inception and reasonable in scope.

In the T.L.O. case, school officials caught T.L.O and another student smoking on school grounds, giving rise to a reasonable suspicion that T.L.O. had cigarettes in her purse that day. This permissible search of the student’s purse led to the discovery of marijuana. In Redding’s case, her classmate’s uncorroborated tip established—at most-- only that Redding had at some unspecified time given her ibuprofen. This information might have given school officials reason to believe that Redding had ibuprofen with her on the day of the search—that’s arguable. It clearly did not create a reasonable suspicion that Redding was concealing ibuprofen in her undergarments. Therefore, officials had no grounds to initiate a strip search.

Nothing happened during the search to provide additional grounds for suspicion. The National School Boards’ amicus brief argues that “only after the initial minimally intrusive attempts turned up nothing did the search progress.” This argument would seem to justify turning every search of an innocent person into a strip search.

In addition, T.L.O. admonishes school officials to consider the age and sex of the student and the nature of the infraction in determining the proper scope of the search. In other words, even if school officials had possessed reasonable suspicion for the search they conducted, the strip search of a thirteen-year-old student for ibuprofen may still have been unreasonably intrusive in scope, particularly where there was no immediate risk to health or safety.

The district also claims that it is not required to conduct the least intrusive search possible, and that it has great latitude to decide what kind of search to conduct. It reaches this conclusion by conflating individualized suspicion cases like T.L.O. and Redding with cases allowing random drug testing in schools. In Vernonia v. Acton the Supreme Court permitted random testing of all student athletes, and in Board of Education v. Earls it permitted random testing of all students involved in extracurricular activities, with no showing of individualized suspicion. The court emphasized that these random searches would not stigmatize any particular student, since all students would be subjected to them. Redding’s search was not random, but targeted. She was singled out, and she was stigmatized.

In short, the Ninth Circuit was correct to hold the search unconstitutional. However, the Ninth Circuit, like the Second and Seventh Circuits, wrongly interprets T.L.O. as establishing a sliding scale governing what level of suspicion is necessary to justify the search of a student. T.L.O. does not do this: it holds that reasonable suspicion is the proper standard. As the Solicitor General argued in an amicus brief, a sliding scale standard is too
indeterminate. It could require probable cause for some searches and no cause of all for others, based on an ad hoc balancing test that would provide little advance guidance to officials. Ideally, the Supreme Court will reject the sliding scale, reaffirm the reasonable suspicion standard, and determine that
under that standard, this search violated the Fourth Amendment.

There are Idiots, and There are Idiots

I'm on the road so not much time for bogging, but this had to be told... Hatom City is a Fort Worth suburb on the north side.

From the Fort Worth Star Telegram:

Woman calls Haltom City cops over her 'extra shrimp'

By Domingo Ramirez Jr.
ramirez@star-telegram.com

A woman who ordered shrimp fried rice at A&D Buffalo’s on Monday afternoon called police when she believed that she didn’t get the extra shrimp she had requested.

Cook June Lee said Monday that there wasn’t anything wrong
with the meal.

"She started yelling, and said that she wasn’t happy," Lee said.

The woman left the restaurant in the 4000 block of East Belknap Street and called for a patrol officer shortly after 3 p.m. But when the officer arrived, the woman and her boyfriend were gone.

Lee never expected a customer to call police.

"Some customers are happy," Lee said. "Some are not."

It’s not the first time a customer has summoned police over food.In March, a woman was cited by police in Florida for misuse of a 911 system when she called dispatchers to complain that she couldn’t get a refund when a McDonald’s ran out of McNuggets and offered her a McDouble instead.

Hallelujah

Folks reading this blog know that I'm not the religious sort. I must, however, admit to a kind of fascination with the energy that can be found in religious music... and in music inspired by religious thought. The video below is of K.D. Lang offering a live performance of Leonard Cohen's Hallelujah.

Hat tip to Shadowfax and his sister. Happy birthday, sis!

Viewing that one caused me to remember a past favorite, performed by Elvis Presley and recorded in 1973 in which a bit of a similar tune was incorporated. Elvis and K.D. look eerily alike.

Cohen is said to have been such a perfectionist that the original version of the song consisted of over 80 verses. He admits to not being a singer, but rather a poet and songwriter, and the song was apparently intended for Bob Dylan. But Dylan never recorded it. He performed it live a few times, and there are a few bootleg copies of that available.

Cohen recorded two versions himself, and there is video of him performing his own work as guest artist at other's concerts. This is my favorite done by the artist.

The song has about as many variations as the Kingsmen's Louie Louie. A commenter to Shadowfax's post left this link to a paper with several embedded WAVE versions and some history. Very interesting.

In Truth We Trust

Tuesday a week ago, on FOX Business, Anchor Liz Claman interviewed one of my current favorite forked-tongue and sneak-Christ-in-the-back-door politicians, Minnesota Representative Michele Bachmann. Claman spent time asking questions about the stimulus bill. Bachmann, like many before her, railed against all the earmarks.

“I took a pledge in my own district. I have not taken earmarks in the last three years that I have been in Congress because the system is so corrupt. It’s possible to make that pledge.” Says Bachmann, and indeed you can find Bachmann’s name among those “brave members who have personally decided to stop receiving pork projects” as one of the members of the Club for Growth, along with club founder Jeff Flake, House Minority Leader John Boehner, and 2008 Presidential candidate John McCain.

You may watch the FOX interview here:

Apparently Bachmann had her fingers crossed, because in FY08 she requested a total of seven earmarks totaling $3,767,600. In other words, Bachmann lied, and in a repeat performance of this pledge the next year, she opted out and did not sign.

Bachmann must think her constituents don't read the news... and perhaps she is correct.

Tug-of-War

The political and cultural wars have taken a toll on our society, with truth and honesty being the greatest casualty. The fringes of both wings resort to any tactic in an effort to win. There is some unreasonable fear for the future of our country if one side manages to dominate. Neither side trusts the other to be truthful and reasonable, and tempers flare for no apparent reason.

Our nation is made up from individuals with varying degrees of political polarization. The myth of a political or curtural war in which one side must dominate and the other be dominated is only an excuse for shrill political pundits to rally the faithful on some concocted battle ground.

Society will not display any noticible changes over short periods of time. Our culture is far too rigid for that. Instead we change slowly, constantly over the course of time. No side will ever win an imaginary war created in the minds of political reactionaries by fighting short-term battles.

Our current political culture seems to place no value on truth. This is made apparent by such inconsistency as we find with Michele Bachman. I pick on her because I dislike her sneaky attempts to insert religion into government, but I could just as easily pick on most any other politician, regardless of party affiliation. Take for instance Republican/Libertarian Ron Paul. One would think if any politician would shun earmarks Mr. Paul would be the one. But obviously not.

So the characteristic that we should find most valuable in an elected member of Congress is absent from even the most conservative and overtly Christian members of that Most August Body. Instead of ethics we find lies, mental gymnastics and revisionist history. I often pick on the Republicans, but this is true of both sides of the isle, and of the White House.

Perhaps truth is not lost

I keep thinking the American people will figure this out, and perhaps now is the most promising time in history for that awakening. Every day there is some new technological means to hear the news, and to vet it for truth. In this respect my friend TOTTYTR is very correct.

We are no longer yoked to a single print newspaper and two or three network news shows. If we want we can listen to all sides of an issue from dozens of angles, and even dig in to the statistical facts by mining the wealth of the Internet. When a politician says one thing and does another, we can learn about it and not be dependent on limited and possibly biased news sources.

If we want, we can scroll back in history and find that the tech bubble burst within a couple months after the Shrub took office, and that the likes of Sean Hannity and Rush Limbaugh rushed to his defense; blaming the stock market crash on Bill Clinton. And now that these two wingnut pundits are blaming the current recession on Barack Obama, we can call it the bullshit that it is.

Teach your children well

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In Defense of Freedom: Part VI

I’ve been remiss in my undertaking. A few months back I set out to look at our Constitution and the Original 10 Amendments, but I got sidetracked by the installation of a new president and the accompanying political maelstrom. Time to get back to it. The last I discussed was the 5th, which I didn’t fully cover, so I’d like to make another brief run at it.

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The area not covered was the prohibition against compelling a person to witness against himself. We know this best as "pleading the 5th", and the case most representative of this provision is Adamson v. California. During trial summation in this murder case, the prosecutor made comments to the jury highlighting the defendant’s decision not to testify on his own behalf. This was in accordance with a California law. Adamson appealed the guilty verdict with a 5th amendment challenge, and the case ended up in front of the Supreme Court.

The question before the court would apply the 5th amendment to a state court under the provisions of the 14th amendment's due process clause. The majority, citing and Palko v. Connecticut and Twining v. New Jersey, ruled that it did not and upheld the conviction. The majority opinion, written by Justice Stanley Reed, the Court found that while Adamson’s rights may have been violated had the case been tried in federal court, the 5th Amendment did not extend to state courts.

The importance of the case is not in the majority opinion, but may be found in Justice Hugo Black’s dissent in which he argued for the absolute and complete application of the Bill of Rights to the states.

“If the choice must be between the selective process of [Palko] applying some of the Bill of Rights to the States or the Twining rule applying none of them, I would choose the Palko selective process. But rather than accept either of these choices, I would follow what I believe was the original purpose of the 14th Amendment- to extend to all of the people of the nation the complete protection of the Bill of Rights. To hold that this Court can determine what, if any, provisions, of the Bill of Rights will be enforced, and if so to what degree, is to frustrate the great design of a written Constitution.”

Black’s view was defended during the 1950s by William Winslow Crosskey[1] and by Alfred Avins[2] in the 1960s, but it wasn’t until Michael Kent Curtis’ work in the 1980’s[3] that the historical research of Justice Hugo L. Black began to bear fruit and the states were held to full constitutional scrutiny.

I’ll probably dwell a little more on Curtis and he work if I make it to the 14th.

[1] Politics and the Constitution in the History of the United States 1083–1175, 1381 n.11 (Univ. Chicago Press,1953)

[2] Incorporation of the Bill of Rights: The Crosskey-Fairman Debates Revisited, 6 HARV. J. ON LEGIS. 1 (1968)

[3] No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Duke Univ. Press 1986)

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Bad Data = Bad Law

My friend TOTWTYTR and I have agreed on damn little through the years, and when we did it was on the topic of food… or sometimes guns. I say sometimes because TO is so far on the right wing of things that his fingernails are the only thing keeping him anchored to the starboard edge of a flat Earth.

Now that I have my dig in, let me point you toward a pretty good ramble by TO. Even though he couches it in the recognizable jargon of a fanatic, he makes a point… and is, for the most part, correct.

Of course I do disagree on some of his pedantry, but the facts he bolgs about are true. It matters not which side of the political spectrum you fall, the truth should matter.

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More Republican Swiftboating.... Harold Koh in the Spotlight

The right wing smear machine is in full battle press, as can be seen in the following video. See if you can spot all the weasel words...



Notice there are few outright lies. The smear is by innuendo, which is typical of right wing dirty tricks.

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Texas Poised to Overtake Tennessee

Please watch the following videos. The first is Texas State Board of Education Chairman, Don McLeroy (whom I have blogged about before) as he attempts to justify the dogged determination of the creationists on the SBOE to inject mythology into Texas science classes. This rant follows on the heels of a guest OpEd piece McLeroy wrote for the Austin American Statesman.



Taking into account that McLeroy is a dentist and is very likely not well schooled in the biological sciences, and taking into account McLeroy’s avowed creationist bent, I find his editorial to be very weak even before we dissect his “facts.” But for the sake of accuracy, let’s dissect those facts.

McLeroy either grossly misunderstands the science he quotes, or is deliberately obfuscating the science. What McLeroy does such a bad job of is understanding punctuated equilibria. This is the theory Stephen Jay Gould referred to in the paper from which McLeroy quotes. The theory states that most species experience negligible change for the largest portion of their history, which is revealed as stasis in the fossil record. But Gould goes on to state that when the kind of phenotypic evolution McLeroy admits does occur, it is geologically localized and occurring in sporadic, branching events.

The fossil record indicates that a species generally survives somewhere around 5-10 million years and that they change very little in that time period. This is Gould’s "stasis." That McLeroy so badly misunderstands. Evolution occurred in spits and spurts separated by millions of years of punctuated equilibria.

McLeroy’s rant is no threat to the theory of evolution, but his actions and those of half of the appointed (by Rick Perry, which is another story altogether) SBOE, added to the fact that the 2nd largest purchaser of textbooks in the country will now demand books supporting myth over science, and you have a situation which could possibly affect even those not in Texas. This is very troublesome.

Now follows a bit of explanation how Texas science books will become the laughing stock of the scientific world, even though the SBOE hired a board of experts to aid in writing the standards. This is biology Professor David Hillis from the University of Texas. Professor Hillis was one of the panel of experts who helped write the initial standards.



So McLeroy’s quote mining can be dismissed, as it becomes painfully apparent that his goal is not teaching our kids science, but propping up his creationist views. If this standard had been in effect when I was in school I could have aced all those science quizzes. The answer to every question would have been “God did it!”

The die may be cast, but the battle is far from over. For much more information and some interesting links, please visit the Texas Citizens for Science website.

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