The constitution as a palimpsest

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Palimpsest – a document written over leaving traces of the original

Palimpsest – a document written over leaving traces of the original

A palimpsest is an old writing scraped from the original manuscript material to make room for a later over-writing, leaving only traces of the original.

We have witnessed an erosion of the plain meaning of the words found in the First Amendment to the U.S. Constitution prohibiting any government, federal, state or local, from “establishing” a religion.  We have a federal appellate decision as recent as this year plainly re-stating that religious worship in schools is an activity that violates the First Amendment.  Yet some government entities have embraced practices establishing religion, in effect, over-writing the plain meaning of the First Amendment.

In the past week, I invited our local government agencies to stop using public buildings for religious worship as a plain and blatant constitutional violation.

In response, some agreed that they couldn’t understand how or why the County permitted church services in our public schools.  One wrote, “I have been bothered by the Grace Church sign on Harmony Middle School for some time.  Wrote a letter to LCPS Administration but didn’t even receive a reply.” Continue reading →

Church in school

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graceBibleHarmony

US Supreme Court Justice Hugo Black in 1947 explained in his opinion in Everson v. Board of Education that a government “establishes” a religion in violation of the First Amendment when it’s “set[ting] up a church,” and aiding any religion; Justice Black cautioned that “the wall [separating church and state] must be kept high and impregnable” against even “the slightest breach.”

In past years, around December, we discussed whether we may have crèches, menorahs, and symbols of religious worship displayed on public common grounds when seeking to skirt this prohibition.

We haven’t, however, spent an instant in public dialogue with the county school superintendent, school board or board of supervisors about whether we have been violating the establishment clause of the First Amendment when we have transformed our schools into houses of religious worship on “the Lord’s Day.”

About 40% of our public schools (34 out of 87 schools) in Loudoun County host Masses and religious worship every Sunday.

The gyms, cafeterias and libraries in our public schools have served as the nave and transept for various church denominations going back 12 years or more.  We’ve had these religious services without a murmur of inquiry or dissent, and now suffer from an inertial indifference to question what’s become an unquestioned practice – “don’t rock the boat” – “after all, the services are not during regular school hours” – “the churches pay to lease the space you know” – even though the established practice appears wholly unconstitutional.

It’s time to declare that religious worship is an impermissible use of our public schools. Continue reading →

Probable cause for murder in Ferguson

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michaelbrowngunshotsDorian Johnson was on Canfield Street in Ferguson, Missouri on August 9 when Officer Darren Wilson stopped Dorian and Mike Brown walking in the middle of the street.

Dorian testified under oath before the grand jury on September 10, 2014.  Dorian’s statement was sufficient probable cause for a judge, magistrate or the grand jury to vote a true bill for a homicide by Officer Wilson.

Probable cause is the standard that governs a grand jury proceeding.

Dorian’s testimony was corroborated by witnesses, physical evidence and autopsy reports.  Yet, Officer Wilson was exonerated and the killing found “justified.”

Johnson swore under oath that Officer Wilson “got right directly on the side of us …” and said, “Get the F ___ on the sidewalk” (p. 45)(G. Jury Transcript, pg, 9/10/14).

Johnson said we “continued to walk … but almost a split second [later] we heard the tires screech, and the Officer [Wilson], he pulled back in the truck [SUV] very fast to the point at an angle – if we didn’t hear his tires screech, the back of his cruiser would have struck one of us … (p. 47)” and “it was very aggressive” (p. 74).  Officer Wilson’s “door was thrust open … real hard,” said Johnson, and “it hit” Mike Brown (p. 49).

Wilson’s “arm came out the window [and] … grabbed ahold of [Brown’s] shirt around the neck area” (p. 49).  Brown was “trying to pull off the officer’s grip” (p. 51).  Johnson said, “the officer [was] trying to pull him inside the vehicle through the window … but [Brown was] pulling away” (p. 53).  Johnson said he heard their “cuss words” and “it [was] escalating” (p. 54).  Wilson then threatened, “I’ll shoot.” (p. 100). Continue reading →

Freiheit – Freedom

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Woodgrove German teacher, Effie Hall (center), with students “protesting” the Berlin Wall

Woodgrove German teacher, Effie Hall (center), with students “protesting” the Berlin Wall

Twenty Five years ago, on November 9, 1989, the 12-foot high Berlin Wall, with its mounted razor wire, manned guard towers, and the adjoining forbidding “strip of death,” all of a sudden, was no longer the brutal towering barrier that prevented East Germans from escaping West to freedom; the wall was coming down.

Woodgrove High School students from Lovettsville, an historic German settlement, and students from Western Loudoun County, commemorated the 25th anniversary of the fall of the wall by “protesting” what the German Chancellor, Willy Brandt, once described as the “wall of shame.”

Students spoke of the offending wall in German and said: “Nie wieder” – Never again!; they said, “Genug!”- Enough!, just as you’d push back against a bully; and they said, as if they were standing before the original wall themselves, “Wir sind frei” – We are free. Continue reading →

No-Brainer

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Loudoun High School Football Practice

Loudoun High School Football Practice

Loudoun County won’t allow our kids to measure the impact of crashing into each other on the football field – even if that information might guard against brain injuries.

Our County school system should have its collective head examined.

The NFL earlier this year said that nearly three in ten retired players will develop debilitating brain conditions like Alzheimer’s disease or dementia.

The NFL has reportedly put the same sensors in its players’ helmets as the military is using to evaluate those jarring head movements that could lead to traumatic brain injury (“TBI”).

The American Football League announced earlier this year that they were requiring helmet mounted sensors made by Brain Sentry out of Maryland.

The sensor gives an alert when a player suffers an unusually rapid acceleration of the head, making that player a candidate for a concussion or for successive concussions that must be accurately and timely evaluated to assure the player’s safety.  The sensor also counts the number of hits to a player’s head.

AFL Commissioner, Jerry B. Kurz, said, “[U]ntil we saw the Brain Sentry impact counter and tested it, we did not feel there was a solution that was practical and deployable for the AFL.”

The sensor is a light weight micro-electromechanical, tri-axial acceleromoter capable of measuring acceleration from any direction, attached to the helmet, and it interferes not at all in the field of play.

We are almost at the end of an era of “dumb helmets” – because we need more real-time objective information to guard against players of any age suffering a possible brain injury.

One report claims that the concussion rate for High School athletes in the United States has doubled since 2005, meaning either the injuries have increased or reporting has improved dramatically.

Loudoun parents went out and bought these Brain Sentry sensors – the same ones the AFL is using – to put on their sons’ helmets to assure some greater measure of safety when playing for Loudoun Valley.  The coaches had the players remove the helmets.  The players could have non-contact drills without the helmets.  But they could not have any contact drills with the sensors on the helmets.  Troubling “logic!” Continue reading →

Utterly unappealing

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mud-slinging campaigns

mud-slinging campaigns

This last political campaign, as conducted by all political parties, was in utter negation of what might have been inspiring, in utter negation of what might have been civil, and in utter negation of what might have been truthful and accurate.

Let’s take stock of what we’ve just endured and discourage the anticipated reoccurrence of this utterly unappealing campaign misconduct.

For starters, it should be at least a misdemeanor for campaigns to lie in the fundraising material that floods and overruns our digital and snail mail boxes.

If there really is someone who will double or triple my contribution, then go bother him for whatever you need.

For days after my final political contribution of this past election cycle, I was solicited by the same candidate for having not contributed.

Other voters received urgent admonitions about failing to vote in a previous election, and given stern school-marmish directives – “Not to let that happen again!” – when those instructing voters often got their facts dead wrong.

We’re numb to candidates being uncivil to each other.  But now those who want our support say whatever it takes to get our money.

My central complaint, however, is that not only did we have a dismal set of wannabe nominees across the nation in both parties, judging by their arguments, but also that no one addressed the most significant argument to be considered throughout this dismal election cycle – How exactly are we going to make these partisans, and the conflicting branches of government, and the objecting states, roll up their sleeves and work together after the election? Continue reading →

The right to vote

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voteflagThe greatest engine for political freedom is the freedom to have a say in your government, to choose who represents your interests, to vote.  Too many failed to exercise this hard won right in the recent election.

When the barons of England confronted King John in 1215 in London with force of arms, the King agreed that the Barons could overrule the King should he break the agreement he made with them.  King John broke his word the instant the Barons left London.  But the Magna Carta was an aspiration to defy the monarch and was found by Sir Edward Coke to encompass not only the nobles but all the subjects of the crown.

Our Virginia Charter of 1606 was drafted by Sir Coke and it said we would enjoy all the liberties of any Englishman.

But that’s not what happened.

When Thomas Jefferson wrote that governments derive “their just powers from the consent of the Governed,” it was because King George III governed without our consent.  Jefferson charged in the Declaration of Independence that the King “dissolved [our] Representative Houses” because they opposed “with manly Firmness [the King’s] Invasions on the Rights of the People,”  “impos[ed] taxes …without our consent,” and unilaterally decided the laws that bound us.

50,000 colonials killed or wounded was the price we paid in a revolution to represent ourselves.

In our Constitution in 1787, “we the people” pledged that we would “form a more perfect union,” and our institutions have since become “more perfect,” extending the vote to persons of color, and to women, and having Senators chosen by the people instead of by the several state legislatures.

There are nation-states where the people are forced to vote and taxed if they don’t.  Not here.

There are nation-states that intimidate and brutalize those who vote the wrong way.  Not here.

When I was a young New York federal prosecutor, we would draw duty on Election Day to respond to any allegation of voter fraud.  I never got a call.  Of the hundreds of millions of votes cast in the United States, there is only a handful of persons nationwide ever prosecuted for voter fraud.

In seeking that more perfect union, Congress passed the Civil Rights Act of 1964 to outlaw discrimination against voters.

In response to the 2000 election, Congress passed the Help America Vote Act, reforming how we vote and setting standards for voting.

We have more work to do to “perfect” our system.

But we have the vote.

The shame of course is that many don’t vote.

Apathy, skepticism, ideological opposition compromise the right of the public to say how they are governed, enabling the cynical to game caucuses and primaries with fewer voters, making forced choices in general elections, again with fewer voters.

The history of individual liberty is the fight to vote.  When we don’t vote, we put at risk our liberty.  So let us vote if we would be free!

Jail House Snitches Lie

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jailCellWe all know jail house snitches are of a lowly character that can’t be trusted.  When I was a NY federal prosecutor, I would never think of using one in the grand jury or on the witness stand in a criminal case.

However convincing the rat, however seemingly useful the testimony to make your prosecution, you had to worry that you were being had – so that the snitch could get what he wanted, some consideration on his sentence, favors to ease his custody, or funds and rewards for his commissary or outside bank account for “cooperating.”

Often the jail house snitch seemingly offers “inside information” on what the target of your investigation said about an offense while the target was in jail, in the yard, at the sally port, by his cell, “admitting” to some aspect of the case you’re pursuing that helps you “make” your case.

These mimetic monsters absorb small and large details from an unwary or reckless prosecutor’s questions and weave a story that “fits,” that helps make a conviction possible in a difficult case where the prosecutor may feel he’s suffering an evidential shortfall.

Our criminal justice system is hardly perfect to begin with but taking one of these snitches and adding them to the mix of a jury trial is to infect an already challenged process with an ingredient you almost certainly know is flawed.  Yet it happens all too often that prosecutors use these snitches at trial in capital or murder cases.

Another challenging aspect of any criminal prosecution is how you use accomplice testimony, meaning someone who was involved in the crime, who “flips,” and agrees to testify for the government in exchange for some consideration on the charges he’ll face or the time he’ll spend in custody, from probation to fewer years than if he took his chances at trial.  You can appreciate how risky it is to shore up an accomplice’s testimony with a jail house snitch.

We will likely be having court arguments, even evidentiary hearings with prosecutors and investigators testifying, so that the court may decide whether a jail house snitch lied at a first degree murder trial in Loudoun County that resulted in a conviction on June 16, 2014, and a jury recommendation that the Accused be imprisoned for life.  Continue reading →

Smaller is better – for learning

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smallschoolWho really thinks that large factory size schools where principals and teachers carry walkie-talkies to manage the place are better than small schools with fewer students in each class room?

If you’ve ever taught a class, or attended one, you know you can give or get more attention in a smaller class, and it’s hard for any son or daughter to get lost or hide from the teacher’s attention when the class is smaller.

We all know what drives the super-sized school is the uncontrolled residential development that, these days, burdens all manner of resources including whether our aquifers can continue to supply enough water for all the wells that will be necessary to serve the residential deluge as yet unbuilt.

We have folk, mostly elected, who rattle the budgetary sabre, threatening to close the small legacy schools, running them down, slandering them – in my opinion.

It’s a test of political wills, to see if the political class can cauterize the right-minded impulse of communities and parents who prefer that small schools educate our young.

What’s the proof that small schools are better? Continue reading →

America has a heart!

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marriagestickfiguresWhen a friend wants something you don’t understand, you respect your friend’s choice.

It may not be true of everything but, when it comes to personal relations, we really should err on the side of support and approval for a friend.

If we can’t support and approve, we should at least be tolerant of another’s choices even when our personal religious belief contradicts our friend’s choice.

Same sex marriage has been in dispute a long time, and is often rightly compared with the offensive intolerance once legally visited upon mixed racial couples.

The federal and state courts have almost uniformly found any state prohibition of same sex marriage to reflect a private moral view that advances no legitimate government interest, and that violates an individual’s constitutional right to marry regardless of gender.

I expected that the Supreme Court would leave this constitutional issue to the states and the lower federal courts unless there was a split in the lower federal court decisions.  Justice Ruth Baden Ginsburg seemed to be saying the same thing at a public forum when she commented that the three federal appeal courts considering the question were in agreement.

The Supreme Court foreshadowed its disapproval of any gay marriage ban when it threw out a federal law that refused benefits to same sex couples.

On October 6, 2014, the Supreme Court therefore found somewhat unsurprisingly no reason to give a hearing to lower court decisions in agreement — that the U.S. Constitution guaranteed the right to same sex partners to marry.

The U.S. Supreme Court, by refusing to hear cert petitions from several “agreeable” federal circuits, thus affirmed the lower court decisions, legalizing same sex marriages in Virginia (Rainer v. Bostic, McQuiqq v. Bostic, Schaefer v. Bostic), Wisconsin (Walker v. Way), Indiana (Bogan v. Baskin), Utah (Herbert v. Kitchen) and Oklahoma (Smith v. Bishop).

The Supreme Court’s tacit approval of these appellate court holdings likely means states in those same federal circuits will approve same sex marriage – and that includes Colorado, Wyoming, Kansas, West Virginia, North Carolina and South Carolina.

On Friday, October 10, 2014, sure enough, a North Carolina federal judge, Max O. Cogburn, Jr., from Asheville, did just that; he struck down the state’s ban on gay marriage as unconstitutional, even though the ban had been approved by the voters in 2012.  Judge Cogburn said: “This issue before this court is neither a political issue nor a moral issue.  It’s a legal issue.”  Sheriff Deputies, Chad Biggs, 35, and Chris Creech, 46, were among the first wed after Judge Cogburn’s ruling.

On Friday, October 10, 2014, the Supreme Court denied a stay to a federal appeals court decision that granted freedom to same sex couples to marry in Idaho.  Idaho officials in favor of the ban argued to the high court, a little too much in the court’s face, if you ask this litigator, that, if they meant to signal approval by the Supreme Court of gay marriage, they should deny the stay.  The Supreme Court denied the stay.

In Leesburg, Virginia, where we make our law offices, Carla Rhoads and Cindy Losasso, a couple for 16 years, got their marriage license and reportedly were the first gay marriage in Loudoun County.

America has found the heart to approve same sex couples and – here in Virginia – we can now truly say – “Virginia is for lovers!” – for all lovers.