On Law & the Constitution

"The end of every law is the common good of the community that it governs." - Thomas Aquinas, church father and influential thinker in the development of the western legal tradition, in his 'Treatise on Law' in Summa Theologica

"Avarice, ambition, revenge, or gallantry, would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."  - John Adams, founding father and second President of the United States, to the Officers of the First Brigade of the Third Division of the Militia of Massachusetts on October 11, 1798

If I was a law professor, I would come up with an essay exam based on these two quotations. It would go something like this: "Does the United States Constitution promote the common good of society? If so, must the government enacting laws and enforcing laws be made up of moral  and religious people? You have thirty minutes to answer and discuss. Start writing." That might also be a good exam for a moral philosophy course.

Did You Know?

Did you know that if you have a dog, you are legally required to keep the dog from "running at large"? This requirement amounts to a legal duty. Hence, if you breach the duty and your dog injures someone while they're at large, you'll be civilly liable for any injuries sustained by someone regardless of whether your dog has shown previous propensities of being dangerous.

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And this one you might be surprised by:

Did you know that there is a cause of action for "breach of marriage promise"? Translation: if you call off your engagement, you could be sued by your former fiance/fiancee. Presumably, this was of greater importance in a world lacking equality between the sexes; however, it's still law in Tennessee and likely elsewhere in America.


* The above is law on the books in Tennessee. But my communication of this information to you via the world-wide web doesn't mean you and I have a lawyer/client relationship. If you need a lawyer -- and I'm a fan of people being legally-informed and represented -- I'd be happy to recommend one to you. Please feel free to email me.

Did You Know?

Did you know that the first public school in the United States was established in 1635? Five of the 56 signers of the Declaration of Independence attended this school known as the Boston Latin School.

What's curious about this information is that it's inconsistent with some of the Establishment Clause alleged facts and case law. In 1971, the Court formulated a test, known as the Lemon test, to determine when the Establishment Clause has been violated. The Lemon Test's inquiries are whether the regulation has a secular purpose, whether the primary effect of the regulation is to advance religion, and whether there is excessive entanglement with religion due to the regulation. However, this test was not applied in an Establishment Clause case in 1983 when the Court was considering whether it was constitutional for legislatures to have prayer before their official proceedings. Marsh v. Chambers. The Supreme Court did not apply the Lemon Test in Chambers because of "unique history" of the United States. Specifically, at the time of the formation of the US when the First Amendment was codified, legislatures were praying publicly before their official sessions. Hence, how could the courts now rule that it is unconstitutional to pray before legislative meetings when the ones who drafted the law were doing that very practice? 

Courts argue that the reasoning of Marsh v. Chambers cannot be applied to issues regarding public schools as public schools were not in existence at the time of the codification of the First Amendment. Really? The founder of Boston Latin School was a puritan minister. Are we really to believe he wasn't leading the students in prayer and other religious activities? This unequivocal application of Lemon seems inconsistent to me ... but law can be an inconsistent, muddy mess.

Did You Know?

Did you know that Roger Williams was banished from the Massachusetts Bay Colony for, among other "heresies," arguing that the civil government should be completely separate from religion?


Weisman v. Lee, 908 F.2d 1090, 1091 (1st Cir. R.I. 1990)

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In other news: I'm in America!

Hey Nashville

One of your Tennessee Congresswomen proposed new law yesterday: H.CON.RES.185. Looks interesting .... wish I could read the text of it!

Of interest .....

Provision from H.R. 3200 summary as introduced by Representative Dingell:

"Amends the Internal Revenue Code to impose a tax on: (1) an individual without coverage under a health benefits plan;"

...

The bill also includes a tax on health and accident insurance plans to provide for the Center for Comparative Effectiveness Research within the Agency for Healthcare Research and Quality.

...

Payments for Medicaid primary care services will increase.

...

The bill also aims to address "health care workforce diversity."


- All data shared from a legislative analysis performed by the Congressional Research Service of the Library of Congress

Did You Know?

Did you know that most* states require by law health care personnel to treat people in emergency situations regardless of their ability to pay?

For example, one Florida statute provides:

..... a person may not be denied needed prehospital treatment or transport from any licensee for an emergency medical condition.....

and

.... A person may not be denied treatment for any emergency medical condition that will deteriorate from a failure to provide such treatment at any general hospital.... (Fla. Stat. § 401.45)

Furthermore, when a physician treats someone in these situations, the doctor and related personnel are usually protected from liability.


* I am not aware of any state that does not require health care personnel to treat emergency-related health care maladies.

"Secularists are wrong when they ask believers to leave their religion at the door before entering into the public square. Frederick Douglass, Abraham Lincoln, William Jennings Bryan, Dorothy Day, Martin Luther King--indeed, the majority of great reformers in American history--were not only motivated by faith but repeatedly used religious language to argue for their cause. To say that men and women should not inject their "personal morality" into public policy debates is a practical absurdity. Our law is by definition a codification of morality, much of it grounded in the Judeo-Christian tradition."

--Barack Obama, "Call to Renewal Keynote Address," June 28, 2006

Healthcare

I wonder how many people, including politicians, have actually read this bill.

Did You Know?

When the government opens its public facilities for expressive activity, it may not enforce a content-based exclusion unless it can demonstrate that the regulation "is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).

Thus, a public school cannot let the Lyons Club use their facilities on the weekend without also allowing a religious group (if the group applies like anyone else) use their facilities on the weekend. It's all or none folks!

Sometimes You Just Have to Wonder

Just read this in an opinion:

"Corporal punishment of an infant child by a spouse's boyfriend/girlfriend is unacceptable and may weigh heavily in a custody proceeding." Holland v. Scoggins, 598 So.2d 974, 1992 Ala. Civ. App. LEXIS 167 (Civ. App. 1992).

Notice anything bizarre?

Did You Know?

Texas Education Code provides that "[e]ach school district that offers kindergarten through grade 12 shall offer, as a required curriculum: ... an enrichment curriculum that includes: ... religious literature, including the Hebrew Scriptures (Old Testament) and New Testament, and its impact on history and literature." (See Tex. Educ. Code § 28.002).

I'm working on a memorandum on the role and treatment of religious holidays in public schools. One source suggests that teachers should "avoid asking students to explain their beliefs and customs." Mind you, this dialogue would be taking place during instruction on religious holidays and the like. Clearly intimidation or making students feel uncomfortable should be avoided, but not encouraging them to analytically articulate a paradigm??? What kind of education should the public school encourage -- think about some things but not other things???

Moderns and their desire to compartmentalize .....

Did You Know?

Did you know that parents can be held legally liable for the destructive acts or theft of their children?

For example, in Ohio any owner of property may maintain a civil action to recover compensatory damages not exceeding ten thousand dollars and court costs from the parent of a minor if the minor willfully damages property belonging to the owner or commits acts cognizable as a "theft offense." (See ORC Ann. § 3109.09).

Did You Know?

Did you know that you can find out the city's assessed value of any home and the price the owner purchased the home for? If you are on the market to buy a home, looking at the city's deed book and tax parcels could tell you a lot about the house you're considering. 

For example, I did some research on one of the houses my mom and I visited at an open house this past Sunday. The owners of this home bought it as a new construction in 2003. There have been no substantial improvements since they bought the home. Yet, in little over five years, these buyers are now asking 50% more than what they paid for the home. That's a huge markup!  The house is not worth that much -- even though it's nice.  Now my suspicions as to why the house has been on the market awhile and is sitting empty are confirmed. 

If you're considering making an offer on a house, think of the bargaining chips you would have if you do your research: you would know that the city assessed the property at a much lower rate and the buyer purchased the house at a substantially lower cost. If you wanted to do more homework and be an even more informed buyer, you could find out the rate of increased cost for labor and supplies in the area which you are buying (for example, as of December 2008, the cost of lumber has gone down by 55% in the past two-three years). 

Bottom line: Do your homework. Be informed. And potentially save money!

The House passed a bill today to allow bankruptcy judges to rewrite mortgages. The judges would have the authority not only to change the interest rates of the mortgages (questionably semi-reasonable) but also to change the principal (shockingly unbelievable). You can read more about it here. 

This bill frightens me to no end. The rule of law is out the door and the rule by the will of power has arrived if the Senate confirms this mess (read Neitzsche for more info).

{Caveat: in terms of the rule of law, this bill is not entirely distinguishable from everything else being passed by Congress.}

However, as one who has witnessed the arbitrary power of bankruptcy judges -- (not that I've had a problem with it previously -- sometimes people need to be told that they cannot purchase a car with a 24% interest rate while in a Chapter 13 bankruptcy -- and yes, people in bankruptcy have tried), but those who are debtors who have filed for bankruptcy voluntarily availed themselves to the mercies of the court. Sellers and lenders contracting with buyers did not avail themselves to the bankruptcy court.  Furthermore, it's not like I have all kinds of respect for all lenders these days. But, the principles of contract law will be thrown out the courtroom door and trampled on if judges can singlehandedly change terms of contract -- and that is something for which I have no respect and can't believe the American people will tolerate.

America is on a slippery, slippery slope. 

Which is why ......

I'm thinking of immigrating to Andorra. Who doesn't want to live on the border of France and Spain and pay no income taxes???

Did You Know?

Did you know that governments may accept permanent religious monuments in public parks without violating the rights of others who are denied a chance to to have a different religious icon sharing park space? 

This rule of law was codified in Pleasant Grove City v. Summum, released from the Supreme Court just this morning, and was a unanimous decision. 

You can read the case here.  

Did You Know?

Yesterday on "Did You Know" I told you that starting next year all estate's exceeding $1,000,000 will be taxed by the Federal government (a big change from $3.5m). Well, did you know that the government's slice of all proceeds over $1m will be 45%? 

For example, if a couple passes away and leaves their home valued at $350,000, $100,000 cash in the bank, and each have life insurance valued at $300,000 (which is pretty low) .... then the $50,000 that exceeds the million-dollar mark is taxed at 45%. That's quite a chunk to turn over to the federal government. 

If this is all extremely nauseating to you, do take heart .... there are estate planning tools and techniques that can be utilized to minimize the massive tax consequences that lots of people will begin to face. 

Did You Know?

Did you know that the Federal estate tax exemption in 2009 is $3,500,000 .... but in 2010 it is schedule to change to only $1,000,000? 

I'm thankful: 50 Law Schools with Best Financial Aid Ratios.