For legal peeps - an interesting regulatory takings theory in play against Gov. Cuomo! Fun stuff.
Posts tagged constitution.
(Sierra Voices) - Texas textbooks determine what children learn nationwide.
“I believe that dinosaurs were on Noah’s Ark … somebody’s got to stand up to these experts.” (Don McElroy, former member of the Texas State Board of Education).
Well, no wonder the GOP wants to defund PBS. Where can I send them a donation??!
What is this?
Houses of Worship Seeking FEMA Grants Face Constitutional Barrier.
Hurricane Sandy flooded and battered St. George Malankara Orthodox Church of India in New Dorp, Staten Island, ruining its basement, windows and doors. Yet, when its vicar contacted the Federal Emergency Management Agency to ask for a grant to help with the estimated $150,000 rebuilding cost, he said he got a clear answer: No.
“FEMA said that they considered the church a business, so they offered us a loan,” the Rev. Alex K. Joy said in an interview about a month after the storm. “But we don’t want a loan. We have 400 members, 90 families. In this situation, we need some assistance.”
A broad range of private nonprofit organizations qualify for federal disaster assistance grants, including zoos, museums, performing arts centers and libraries. Houses of worship, however, are not on the list, even though in recent years the federal government has ruled that some religiously affiliated institutions like schools and hospitals can get grants.
An effort is under way to change that, led by several Jewish organizations, including the Union of Orthodox Jewish Congregations of America and the American Jewish Committee. Last month, Senator Joseph I. Lieberman, independent of Connecticut, introduced an amendment to the multibillion-dollar Hurricane Sandy recovery appropriations bill that would explicitly place houses of worship on the list of qualified organizations. But because of an unrelated bipartisan deal meant to ease the bill’s passage, that amendment was locked out of consideration.
Mr. Lieberman’s tenure in the Senate ended this week, but Nathan Diament, the executive director of public policy for the Institute for Public Affairs at the Orthodox Union, said he was continuing to work with other lawmakers to add the amendment to the bill before it came again before Congress.
“Houses of worship should not be discriminated against and excluded from getting assistance on the same terms as other eligible nonprofits,” he said.
Mr. Diament has also been meeting with officials from the Homeland Security Department and other federal agencies to see if the change can be made without legislative action. FEMA regulations are silent on the matter of houses of worship, so a bureaucratic decision may be all that is required, he added.
Yet the issue is controversial, because the constitutional separation of church and state generally bans the use of tax money to build religious institutions. Dena Sher, legislative counsel for the American Civil Liberties Union, said the organization had “serious concerns” about the effort to change the policy and was monitoring the situation.
“To rebuild houses of worship is a form of compelled support for religion, which is exactly what the First Amendment is designed to protect against,” Ms. Sher said. “We understand and identify with the serious difficulties everyone is facing, but we can’t let this misfortune be used as a premise to erode these bedrock principles.”
I should also note, the very interesting and oft-forgotten Treaty of Tripoli, signed in 1797 between the US and several Muslim countries that had for centuries routinely pirated the Mediterranean. The U.S. ratified the treaty, stating in Article 11:
As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries.
A lot has changed since then with respect to the intent of separation of church and state. Several federal laws have been enacted that specifically favor religious institutions over other institutions (see RLUIPA, for one mind-blowing example).
These federal laws are burdensome to local communities, and are actively being litigated. They provide religious organizations wide latitude to build church-related buildings on any plot of land in the U.S. regardless of local law (in sum). It’s much more complicated than this, and not suitable for a tumblr post.
So, while cities and towns regulate their land uses in nearly every respect, religious organizations are ostensibly immune from local regulations, such as zoning and some local environmental regulations.
So the question of federal funds is interesting: Should federal funds be used to bail out religious institutions above other non-profits? Why wouldn’t these organizations look to the free market or local communities they serve? It is very interesting to think that FEMA could be forced to reconcile the intent of the founders and the clear meaning of the Constitution with modern day political whims.
See also, video.
Medina and her fellow tea partyers oppose TransCanada’s use of eminent domain to claim private land for pipeline use, and they say Texas laws don’t protect landowners and city councils in the event of a spill.
Eminent domain has been used for years by government agencies and private companies to build roads and pipelines, as well as parks and environmental protection areas. But a recent Texas Supreme Court decision suggested that landowners may have the legal grounds to challenge companies that use eminent domain.
Essentially, republicans support the government using eminent domain to take private property and hand it over to a foreign oil company. In a surprising alliance, some Tea Party factions joined enviros to oppose the Keystone XL Pipeline via an anti-eminent domain argument.
More at RollCall
I’m no supporter of PETA, but this is interesting to me because it furthers, or at least tightens, the better arguments that some species are in need of stronger federal protections beyond the Endangered Species Act - especially in the new context of climate change. Antiquated laws need to be updated to address a new, unforeseen reality and accommodate new information. Things like stronger habitat protection with higher fines for violations; clear recovery plans for threatened species; and tighter restrictions on land-use development, especially mining and drilling. More on those issues, here.
PETA lost their case because the 13th amendment clearly establishes rights for people, but not animals. I’m surprised the case got as far as it did…
The case is one of the boldest attempts yet to establish legal rights for animals, and the first to attempt to do so on constitutional grounds. But some groups that support legal rights for animals say PETA’s case may end up hurting the cause.
PETA’s suit, filed in October, argued that the orcas “were forcibly taken from their families and natural habitats” and forced to live in “barren concrete tanks in unnatural physical and social conditions.” Noting that orcas have highly developed brains and complex social lives, PETA argued that the animals deserve the same protection as humans under the 13th Amendment. SeaWorld countered that the 13th Amendment, adopted in 1865, was intended to apply specifically to human beings enslaved by other human beings. U.S. District Judge Jeffrey Miller agreed, ruling that “the only reasonable interpretation of the Thirteenth Amendment’s plain language is that it applies to persons, and not to non-persons such as orcas.”
“It was a foolish suit and a sure loser,” says Steven Wise, president and founder of the Nonhuman Rights Project (NHRP), which seeks to establish personhood and legal rights for animals. Wise argues that bringing a case in federal court on constitutional grounds was a huge mistake.
NDAA passes Senate, heads to Barack “Bend-Americans-Over” Obama to sign: Republicans win 70+ year fight to create security state, defeat Bill of Rights. American voters continue to do nothing…
PBS | Secret Government : The Constitution In Crisis
This is the full length 90 min. version of Bill Moyer’s 1987 scathing critique of the criminal subterfuge carried out by the Executive Branch of the United States Government to carry out operations which are clearly contrary to the wishes and values of the American people. *** WITH SOUND! Only a small piece (about 1 1/2 minute) is without sound, for a copyrighted bit of music. Full sound resumes at 3:20 ***
The ability to exercise this power with impunity is facilitated by the National Security Act of 1947. The thrust of the exposé is the Iran-Contra arms and drug-running operations which flooded the streets of our nation with crack cocaine. The significance of the documentary is probably greater today…than it was when it was made.
For planners or land use people into risk, an interesting call for papers from UCLA:
UCLA Urban Planning Journal
CALL FOR PAPERS
Volume 19, Summer 2012
Deadline for submissions: Monday, 2 January 2012
Urban areas are major battlegrounds of economic, political, and social conflict. Cities have long been sites for struggle; however, urbanization and globalization have intensified this strife. As the stakes of planning have risen in political, military, and economic affairs, so has the temptation to use coercive tactics in urban conflicts.
Government responses to terrorism, trafficking, piracy, and other forms of lawlessness have reflected this proclivity for violence. As worsening local economic inequality has spurred discontent in all parts of the world, governments have sought to acquire security through force. States have tightened the physical control of their borders, while implementing increased immigration enforcement within those borders. They have blurred the lines between military and police forces. They have even invaded and occupied territories seen as hostile to their national identity.
Militaristic transformations are not always so overt. Though frequently unobserved and sometimes forgotten, the specter of force wielded in the control of space is a primary structural component underpinning political economic systems. Moreover, militarism can have major indirect effects on society. Sub-national regions compete fiercely for the privilege to leverage military production as local development, significantly shaping politics, economic planning, and the built environment. The impulse to secure territory also features prominently in physical and social architectures, legal systems, police technology and tactics, security architectures, and residential patterns.
Yet, the state does not monopolize the use of force in the control of space. For example, powerful corporations and criminal organizations both may rely on force to advance their purposes. Nor is the control of space uncontested. Ordinary people are engaging in mass protests, violent and nonviolent, in the Middle East, in the Maghreb, in Southern Europe, in the United States, and elsewhere—not only to critique government policies, but also to resist and challenge the control of space. These social movements may portend a turn towards a more sustained progressive militaristic urbanism.
For its 19th volume, Critical Planning invites critical research papers, book reviews, essays, literary journalism projects, poetry, and artistic projects that investigate and enlighten the issue of the militarization of cities, or that address the question of how planning can respond to the challenge of militarization with improved social justice outcomes. Among others, possible topics include:
· Policing, crime prevention, and surveillance
· Military-industrial / military-metropolitan complex
· Social movements and rights to space
· War and occupation
· Security and border control
· Social control through design and architecture
Critical Planning is a double-blind peer-reviewed publication. Feature articles are generally between 5,000 and 7,000 words, while shorter articles are between 1,000 and 3,000 words. Essays range from 1,000 to 7,000 words. Poetry submissions should be fewer than 600 words or 4 poems, whichever is shorter. We encourage submissions that incorporate cross-disciplinary, multi-scalar, multi-sited, transnational, or mixed-method approaches. We also welcome submissions of photographs, maps, art, or design projects related to the topic of militarized urban spaces for publication in the journal.
Submissions will be accepted on a rolling basis, and we highly encourage early submissions. Feel free to contact us by email to discuss your ideas. All academic submissions should be written according to the standards of the Chicago Manual of Style, 16th Edition. Please follow the journal’s additional style guidelines for submissions. Manuscripts should be submitted by 5 PM PST on Monday, 2 January 2012 as .doc attachments via email to email@example.com, or mail two hard copies (postmarked by the same date) to:
c/o Ian Elder and Nina Flores, Managing Editors
UCLA Department of Urban Planning
School of Public Affairs
3250 Public Policy Building
Los Angeles, CA 90095-1656www.criticalplanning.org
Rep. Ted Deutch (D-FL), left, introduced legislation Friday aimed at removing corporate cash from politics by amending the constitution to outlaw corporate money in elections. Cleverly named Outlawing Corporate Cash Undermining the Public Interest in our Elections and Democracy (OCCUPIED), the law would reverse Citizens United.
Suzy Khimm: I understand this amendment was directly inspired by Occupy Wall Street. Tell me more about how this all came to be.
Ted Deutch: One thing that’s been clear throughout the protests all across the country is that people are tired of a political system that they believe doesn’t respond to their needs, that doesn’t reflect the interests of the American people, and that caters to the corporations that have occupied Washington for far too long. […]
SK: So corporations don’t have any right to participate in elections? Why should they be treated differently than, say, labor unions or nonprofit organizations ? Unions also benefited from Citizens United, but, as I understand it, they wouldn’t be affected by your amendment.
TD: Corporations that are formed for the purpose of earning profits do not have the constitutionally protected rights that natural citizens have. They should not spend their corporate dollars, Treasury dollars to influence outcome of elections.
[As for unions and nonprofits], the amendment gives Congress the authority to create a campaign finance system that ultimately is fair across the board . . . that gives the government back to the people. The amendment specifically reverses Citizens United in making clear that for-profit corporations shouldn’t be spending money on elections. Any other group of people, group of individuals, is going to be in same position as they are now.
SK: If there’s such overwhelming support for these kind of changes though, why not wait for the legal system to come to that conclusion?
TD: [Justice] Stevens vehemently disagreed with the position of the court, legal scholars across America have disagreed . . . but there is every reason to believe the Supreme Court may well continue down this path and move beyond Citizens United and allow corporations to contribute to candidates directly. I don’t believe the American people should wait to see if this is the direction that the Supreme Court goes. We ought to act now. It’s what the framers of the Constitution and people across America understand. [read more]
Eminent domain in its modern form is the biggest obstacle to development. While stories like these really, really piss people off, tens of thousands of buildings are threatened by sea level rise. And, as I’ve written elsewhere on land-use and constitutional takings, a big battle is brewing. This story from the LA Times parallels many issues in the field of adaptation. If adaptation includes tough choices like condemning large swaths of vulnerable cities, how will the public respond? By the same token, if building a train involves condemning large swaths of land along the spine of California, how will the public handle it? Here’s how the Times reports the issue:
The high price of the California bullet train: Its proposed route would destroy churches, schools, homes, warehouses, banks, medical offices, stores and much more.
Whether the Central Valley can force significant changes in the bullet train plan is unclear. Up and down the valley, people know they are not playing with a strong political hand.
“Some people will say they screwed a bunch of farmers in Kings County. So who cares?” said Frank Oliveira, a farmer. “The answer is they will screw you too when it comes to your neighborhood.”
Photo: Fernando Salazar, 17, a junior at Bakersfield High School, makes a box in the wood-working shop at Bakersfield High School. A proposed high-speed rail route would require closure of the school’s industrial arts building. Credit: Anne Cusack / Los Angeles Times
I can’t help but reblog this HUGE win for Americans: it’s not a crime to film police. Please reblog!!
Photography Is Not A Crime of the Day: Simon Glik, a Boston lawyer who sued the city and several police officers for arresting him and seizing his phone while he was recording a violent drug arrest on the Boston Common, succeeded in convincing the Court of Appeals for the First Circuit that his first and fourth amendment rights had been violated.
The Police Department attempted to claim “qualified immunity” — a doctrine that “protects government officials from lawsuits alleging that they violated plaintiffs’ rights” except in cases where a “clearly established” statutory or constitutional right has been violated — on grounds that Glik was arrested for “illegal wiretapping” (conducting an audio recording “without the consent of both parties”).
The court ruled that Glik’s lawsuit is allowed to stand because “firmly established” rights were violated when his phone was seized. From the ruling [PDF]: “Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs’.”
The court went on to say that “changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw,” and therefore First Amendment protections for news-gatherers can no longer “turn on professional credentials or status.”
Thoroughly enjoyed Gary Fields WSJ article on the problem of federal laws, “As Criminal Laws Proliferate, More Are Ensnared”
The U.S. Constitution mentions three federal crimes by citizens: treason, piracy and counterfeiting. By the turn of the 20th century, the number of criminal statutes numbered in the dozens.
Today, there are an estimated 4,500 crimes in federal statutes, according to a 2008 study by retired Louisiana State University law professor John Baker. There are also thousands of regulations that carry criminal penalties. Some laws are so complex, scholars debate whether they represent one offense, or scores of offenses.
Click the below to access the interactive data.
Counting (all the crimes) is impossible. The Justice Department spent two years trying in the 1980s, but produced only an estimate: 3,000 federal criminal offenses.
What’s really interesting about these laws is that, unlike the states, the Federal Government doesn’t have to show criminal intent. If you’re digging up arrowheads with your son as a hobby, for example, you could go to jail for up to 2 years for violating the Archaeological Resources Protection Act of 1979. The government doesn’t have to show that you had the intent to steal the arrowheads, you’re just guilty period (oppose that to, say, robbing a bank where your intent, while obvious, still has to be shown in local courts).
Fields notes, that the Archaeological Resources Protection Act of 1979 “doesn’t require criminal intent and makes it a felony punishable by up to two years in prison to attempt to take artifacts off federal land without a permit.”
What do you think?