Integrity Legal

Posts Tagged ‘Declaration of Independence’

22nd August 2011

Loss of consortium is a term used in the law of torts that refers to the deprivation of the benefits of a family relationship due to injuries caused by a tortfeasor. Loss of consortium arising from personal injuries was recognized under the English common law. For example in Baker v Bolton, (1808) 1 Camp 493, a man was permitted to recover for his loss of consortium while his wife languished after a carriage accident. However, once she died from her injuries, his right to recover for lost consortium ended. After the enactment of the Lord Campbell’s Act (9 and 10 Vic. c. 93) the English common law continued to prohibit recovery for loss of consortium resulting from the death of a victim. The availability of loss of consortium differs drastically among common law jurisdictions and does not exist at all in several of them. Damages for loss of consortium are considered separately from, and are not to be confused with compensatory damages

Quoted Directly From Wikipedia, Wikipedia.org

Up until this point in time, the issue of federal recognition of same sex marriage was of primary interest to this blogger due to the immigration implications; but after further contemplation on a currently pending situation involving a same sex married couple in the sovereign State of California this blogger felt it noteworthy to discuss some immigration matters and how they may relate to the concepts noted above. However, in order to provide further context this blogger is compelled to quote directly from the official website of the Huffington Post, HuiffingtonPost.com:

Due to a surprise announcement by the Obama administration to consider same-sex marriage in deportation decisions, as reported by The Huffington Post, Australian-born Anthony Makk, who is currently facing deportation, may be able to stay in the U.S. with his husband Bradford Wells. Earlier this month, The Huffington Post reported the story of Anthony Makk and Bradford Wells, a same-sex married couple that faces deportation for Makk when his visa expires on August 25. Makk and Wells have lived together for 19 years and were legally married in Massachusetts in 2004. Makk is also the primary care taker for Wells, who suffers from AIDS…

The administration of this web log strongly encourages readers to click upon the appropriate hyperlinks noted above in order to read this article in detail.

At the time of this writing it does appear that the United States Citizenship and Immigration Service (USCIS) may not remove the same sex spouse of an American Citizen suffering from a debilitating illness. However, this should not be viewed as a foregone conclusion. Moreover, it should also be noted that the Commonwealth of Massachusetts‘ reserved right to marry those in her jurisdiction predates the US Constitution, the Articles of Confederation, and the Declaration of Independence. Therefore, it could be reasonably argued that where a State with such a constitution has manifested her political will in favor of legalizing and/or solemnizing same sex marriage the federal government should accord said unions Full Faith and Credit pursuant to the Full Faith and Credit Clause. It should be noted that proposed legislation such as Representative Jerrold Nadler‘s Respect for Marriage Act would seem to provide Full Faith and Credit to States which license same sex marriage while allowing other jurisdictions to retain their own interpretation of marriage through a “certainty” scheme. That stated, such a scheme does not deal with the dilemma in the instant case. The Uniting American Families Act appears to have been drafted to specifically address the immigration implications of the so-called “Defense of Marriage Act” (DOMA) since DOMA specifically precludes federal recognition of same sex marriage thereby denying visa benefits such as the K-1 visa, CR-1 visa, or the IR-1 visa for same sex couples.

This blogger must wonder whether the US Courts, in an effort to prevent loss of consortium in the case noted above, could use an equitable remedy such as an injunction to impose something akin to a temporary restraining order upon the USCIS thereby placing a hold upon the removal with an eye toward sorting out the Full Faith and Credit issues: would this not be especially poignant in a forum such as the Massachusetts Federal Courts, assuming jurisdiction, due to the Erie Doctrine since the underlying marriage took place therein? The ultimate fate of the same sex couple noted above remains to be seen, but there is hope as recent developments would seem to suggest that there could ultimately be a positive outcome.

For information related to legal services in Asia please see: Legal.

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16th July 2011

First they came for the communists,
and I didn’t speak out because I wasn’t a communist.

Then they came for the trade unionists,
and I didn’t speak out because I wasn’t a trade unionist.

Then they came for the Jews,
and I didn’t speak out because I wasn’t a Jew.

Then they came for me
and there was no one left to speak out for me…

[F]amous statement attributed to Pastor Martin Niemöller (1892–1984) about the inactivity of German intellectuals following the Nazi rise to power and the purging of their chosen targets, group after group.”

quoted directly from the official website of  Wikipedia, Wikipedia.org

It recently came to this blogger’s attention that the former Secretary of Defense of the United States of America has been the subject of a so-called “enhanced patdown” (A.K.A grope down) administered by the TSA.  To quote directly from a very insightful article by Josh Rogin posted in The Cable on the official website of Foreign Policy, ForeignPolicy.com:

Former Defense Secretary Donald Rumsfeld was on the other side of the homeland security policies his administration helped to create today when he was held up and patted down at the airport after setting off the metal detectors on his way to board a flight…Rumsfeld was in Chicago to attend a panel and luncheon hosted by the Heritage Foundation and was on the way to Grand Rapids, MI to attend the funeral of Betty Ford, whom he called “one of America’s most beloved first ladies.”

This blogger asks readers to click on the relevant hyperlinks noted above to read this article in full and thereby gain insight into what apparently happened.

In this blogger’s opinion, the news above elucidates the fundamental absurdity and ridiculousness of the Transportation Security Administration (TSA), as of late, especially in light of the United States Constitution’s 4th Amendment protection against unreasonable searches and seizures.To provide poignant context it is again necessary to quote Wikipedia’s 4th Amendment entry:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In what way is it reasonable to assume that groping a former Defense Secretary is reasonable while he is traveling to the funeral of a former First Lady? Where is the probable cause for this activity? Where is the warrant for such an invasion of Mr. Rumsfeld’s personal space? These events seem rather ironic since it was Mr. Bush’s administration that began these Constitutionally-suspect practices. However, that should not divert the reader’s attention from the severity of this state of affairs. At what point did it become reasonable to deny everyone their Constitutional right to be free from unwanted touching? Or, perhaps more specifically unwanted searches of persons without a warrant supported by probable cause? To provide further insight, it is necessary to quote from another section of Wikipedia discussing fundamental legal issues associated with the American Constitution:

The U.S. Declaration of Independence states that it has become necessary for the United States to assume “the separate and equal station to which the Laws of Nature and of Nature’s God entitle them”. Some early American lawyers and judges perceived natural law as too tenuous, amorphous and evanescent a legal basis for grounding concrete rights and governmental limitations.[3] Natural law did, however, serve as authority for legal claims and rights in some judicial decisions, legislative acts, and legal pronouncements.[66] Robert Lowry Clinton argues that the U.S. Constitution rests on a common law foundation and the common law, in turn, rests on a classical natural law foundation.[67]

This quotation above is important because it demonstrates the reason for the very existence of the 4th Amendment itself. Namely: to codify extremely important, yet utterly subtle natural rights. The founders were well aware of the fact some natural rights are so inherent to the very fiber of We The People‘s being that they are (under the weight of occasionally specious yet tempting legal reasoning) sometimes subject to being taken for granted by dint of their almost ethereal nature.

Readers are asked to bear the above in mind as this blogger feels compelled to quote directly from the website of My Fox New York, MyFoxNY.com:

[A] Colorado woman is accused of putting her hands on a TSA agent at Sky Harbor International Airport in Phoenix. Court records show 61-year-old Yukari Mihamae grabbed the left breast of the female agent Thursday at the Terminal 4 checkpoint…Mihamae now faces a felony count of sexual abuse. According to court records, she lives in Longmont, Colorado and is self-employed…

Readers are asked to click upon the hyperlinks above to read this article in detail. It is also necessary to point out that the woman in question noted above is innocent until proven guilty of any charge under American law and the American justice system’s adherence to Blackstone’s Formulation. That said, it will, no doubt, be interesting to ascertain the facts surrounding this incident since the lead-up to this incident may, at the least, provide context. Travel is stressful to begin with and, in this blogger’s opinion, such stress is only compounded by the duress which arises with the prospect of an invasive pat-down and the insistence, with little legal foundation, that such a pat-down be imposed.

In a somewhat startling turn of similar events it would appear that a woman in the sovereign State of Tennessee has been subjected to arrest as a result of an incident involving the TSA. In order to provide further insight on these developments it is necessary to quote directly from the Mail Online website at DailyMail.co.uk:

A mother has been arrested after refusing to let her child be searched by a TSA agent. Andrea Fornella Abbott, 41, was arrested at Nashville International Airport on Saturday after telling agents she did not want her daughter to be ‘touched inappropriately’ or have her ‘crotch grabbed,’ according to a police report. Mrs Abbott acted ‘belligerent and verbally abusive to staff’, yelling and swearing at them, according to the report. Police said after the woman refused to calm down she was arrested and charged with disorderly conduct…

The administration of this blog asks readers to click upon the hyperlinks above to read the totality of this report. Readers are reminded that those arrested in the United States of America are, as noted previously, viewed in the eyes of the law as innocent until proven guilty.
A wiser person than this blogger once wryly noted that even in matters pertaining to the law it is imprudent to attempt to try to interpose between a mother and a child whom the mother believes may be in distress. Such interposition may be especially imprudent if not fully backed by the Full Faith and Credit of American law. With that in mind it recently came to this blogger’s attention that Member of the United States House of Representatives, Representative Ron Paul, recently announced what would appear to be the re-introduction of a bill that could ameliorate some of the duress currently being borne by innocent Americans. To quote directly from the official website of Representative Paul:

Mr. Speaker, today I introduce legislation to protect Americans from physical and emotional abuse by federal Transportation Security Administration employees conducting screenings at the nation’s airports. We have seen the videos of terrified children being grabbed and probed by airport screeners. We have read the stories of Americans being subjected to humiliating body imaging machines and/or forced to have the most intimate parts of their bodies poked and fondled. We do not know the potentially harmful effects of the radiation emitted by the new millimeter wave machines. In one recent well-publicized case, a TSA official is recorded during an attempted body search saying, “By buying your ticket you gave up a lot of rights.” I strongly disagree and am sure I am not alone in believing that we Americans should never give up our rights in order to travel. As our Declaration of Independence states, our rights are inalienable. This TSA version of our rights looks more like the “rights” granted in the old Soviet Constitutions, where freedoms were granted to Soviet citizens — right up to the moment the state decided to remove those freedoms…Imagine if the political elites in our country were forced to endure the same conditions at the airport as business travelers, families, senior citizens, and the rest of us. Perhaps this problem could be quickly resolved if every cabinet secretary, every Member of Congress, and every department head in the Obama administration were forced to submit to the same degrading screening process as the people who pay their salaries…

The administration of this blog strongly encourages readers to click upon the hyperlinks noted above to read this announcement in detail. The legislation to which Representative Paul so passionately refers would appear to be the so-called American Traveller Dignity Act of 2010 or H.R. 6416 which provides that:

No law of the United States shall be construed to confer any immunity for a Federal employee or agency or any individual or entity that receives Federal funds, who subjects an individual to any physical contact (including contact with any clothing the individual is wearing), x-rays, or millimeter waves, or aids in the creation of or views a representation of any part of a individual’s body covered by clothing as a condition for such individual to be in an airport or to fly in an aircraft. The preceding sentence shall apply even if the individual or the individual’s parent, guardian, or any other individual gives consent.

This administration asks readers to click upon the links above to read about the totality of this information. In the interest of full disclosure to the reader it must be confessed that these pat-downs are not just the source of academic annoyance for this blogger as he was recently the victim of one of these “pat-downs”. When this blogger inquired as to the authority for the search especially in light of the Right to travel enshrined in the provisions of the 14th Amendment and the right to be free from unreasonable searches and seizures without due process of law in the form of a warrant supported by probable cause pursuant to the 4th Amendment this blogger was told that such notions were subordinate to some amorphous and never-fully-explained (supposedly posted, but this blogger never actually saw them since no one was willing to provide them) “federal regulations”. This blogger does not have any particular issue with federal regulations per se as they are often the legitimate by-product of legitimate law-making, but they never can contravene Constitutional law as Constitutional law and the protections of the Bill of Rights can only act to override the provisions of federal regulation; and only then, when certain regulations offend the rightful liberties of the American People.

With respect to the this blogger’s opinion regarding his recent “enhanced pat-down” it can only be said that whatever my “enhanced pat-down” was, it certainly did not feel like the legitimate operation of a supreme government. Therefore, I shall look toward remedies for this issue and the most effective remedies appear to be awaiting at either the ballot box or perhaps one day upon the desk of the Clerk of the United States House of Representatives. With respect to the Several States it should be noted that some such as Texas and Michigan may be discussing the the promulgation of State law with respect to involuntary touching at relevant airports. How State legislation of this variety would impact American jurisprudence especially in light of notions such as the Erie Doctrine remains to be seen, but it may merely remain an interesting point to speculate upon.

For related information please see: Full Faith and Credit Clause.

– Benjamin Walter Hart

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