Thursday, March 20, 2014

Drug Test All Welfare Applicants

Drug Test All Welfare Applicants
Commentary by Sanford D. Horn
March 20, 2014

The Indiana State House needs to stand its ground regarding the drug testing of all potential welfare recipients. The watered down version approved by the State Senate is simply too weak.

Either version of the bill (HB 1351) must still answer questions pertaining to its Constitutionality as per the Fourth Amendment and unreasonable/reasonable search and seizure. The crux is the word reasonable.

Welfare is not mandatory; and while it is deemed reasonable for potential employees to pass a drug test prior to commencing a new job, it is thusly equally reasonable for potential welfare recipients to pass the same drug test. After all, it is the taxes paid by the drug tested employee that fund the welfare of the unemployed. This should be uniform law in all 50 states.

In a recent interview on the O’ Reilly Factor on the Fox News Channel, former Ohio Congressman Dennis Kucinich raised the aforementioned Fourth Amendment issue as well as the Fifth Amendment in his objection to drug testing welfare applicants. The point about the Fifth Amendment pertains to the right not to incriminate oneself. In both cases – the Fourth and Fifth amendments remain inviolate as one is not required to apply for, or accept welfare. Should applicants accept the aid, they would need to adhere to government policies pertaining to such acceptance. Remember, these are people going to government, not the other way around. Another case for smaller, less intrusive government, by the way.

Kucinich further declared that should drug testing occur, it should be across the board for all who request government aid – such as bank bailouts. Kucinich harped on the bank bailouts without mentioning the bailout of the auto industry, but his point is well taken. But from this vantage point, government should not have bailed out either the banking or automobile industries in the first place. If a business fails, either go back to the drawing board for a more desirable product or go the way of the dinosaur and Oldsmobile. Don’t want strings attached, don’t become a government puppet.

There are concerns about the children of the drug tested welfare applicants whose benefits are denied. According to The Indianapolis Star article of March 5, 2014, “Senate OK’s drug testing for some on welfare,” children “would continue to receive benefits through a trustee.” That idea is very reasonable as drug users are rightfully punished without taking food out of the mouths of children.

Bottom line, if those paying the taxes are held accountable, so too should the recipients of those very tax dollars.

Sanford D. Horn is a writer and educator living in Westfield, IN.

Tuesday, March 4, 2014

Ninth Circuit Short Circuits on Flag Shirts

Ninth Circuit Short Circuits on Flag Shirts
Commentary by Sanford D. Horn
March 4, 2014

More anger than incredulity simply because little emerging from the 9th U.S. Circuit Court of Appeals should surprise anyone with a pulse who has been paying attention to the machinations of that body.

Yet, a disturbing ruling made by the 9th Circuit Court sounds the alarm bells of the loudest wakeup call imaginable – a cacophony of fear, sadness, and surrender – shaking this nation to its very core. Threats of racial violence have vanquished the First Amendment to the United States Constitution.

In a much ballyhooed case dating back to May 5, 2010, five Live Oak Hill High School students arrived at school clad in t-shirts sporting the American flag. They were given the option of turning the shirts inside out or returning home with an excused absence because of numerous threats of racial violence. The 9th Circuit Court determined that the concerns regarding the threats of violence overshadowed the students’ First Amendment right of free expression.

In reaching its decision, the 9th Circuit Court relied upon the 1969 Supreme Court case Tinker v. Des Moines Independent Community School District. In Tinker several junior high and high school students protested the war in Vietnam by donning black armbands in school. School officials banned the armbands just two days prior to the students appearing in the schools wearing them.

The students were subsequently sent home and suspended until such time as they returned to school sans armbands. The students’ claimed their First Amendment rights of free speech and expression were violated by Des Moines – after all, the First Amendment does not cease to exist upon entering the school.

The Supreme Court, in a 7-2 decision, supported the school officials’ authority to set rules and policies provided they are “consistent with the First Amendment rights of students and teachers.”*

Continuing with Tinker, “wearing an armband as a silent form of expressing an opinion was, according to the Court, ‘akin to pure speech’ and involved ‘primary First Amendment rights.’”*

Tinker, for it to be valid, relies upon the key word – consistent. “The Court stressed the fact that school officials had permitted other political symbols to be worn. For example, some students wore political campaign buttons, and others wore the Iron Cross, a symbol of Nazism.”* Only the anti-Vietnam Conflict armbands were singled out for exclusion, restriction, and eventually punishment – not even a symbol of Nazism was deemed inappropriate – which even in 1969 Iowa is both disturbing and lacking consistency.

If anything, Tinker should support the First Amendment right of the California students to wear their American flag t-shirts on Cinco de Mayo, or any other day, for that matter. Are flags in classrooms being taken down on Cinco de Mayo? How about the flags flying outside the school, yet still on the campus property? Are they raised on May 5th?

The Live Oak High case, where the 9th Circuit Court upheld a school’s decision denying students the right of expression in the wearing of t-shirts depicting the American flag lacks the consistency rooted in Tinker. Are other t-shirts with designs barred from this school? Are other dates subject to wardrobe review and restriction?

Cinco de Mayo celebrates victory by the Mexican army over the then far superior French army in the May 5, 1862 Battle of Puebla, yet is widely observed in the United States by those of Mexican heritage. While this “holiday” is typically enjoyed by many of non-Mexican heritage with the enjoyment of Mexican beer and food, there is no reason why Americans should be barred from wearing t-shirts emblazoned with American flags. Why not ban the wearing of t-shirts with French flags?

Should other battles be observed in this same manner – with threats of racial or ethnic violence to prevent people from donning American flag t-shirts? How about on April 25 for the celebration of the Dutch victory over Spain in the 1607 Battle of Gibraltar? How about September 12 for the celebration of Poland’s victory over the Ottomans in the 1683 Battle of Vienna? How about January 14 for the celebration of the French victory under Napoleon over the Austrians in the 1797 Battle of Rivoli? How about September 1 for the celebration of the British victory over the Afghans in the 1880 Battle of Kandahar? How about December 12 for the celebration of Finland’s victory over the Soviet Union in the 1939 Battle of Tolvajarvi?

Or, if battles are not the focal point of celebration and ethnic pride is, should American flag t-shirts be banned on St. Patrick’s Day if Irish-Americans threaten ethnic violence? How about Columbus Day? How about Israel Independence Day?

Moreover, when did American society reach the deleterious point of threats of violence ruling the day? Students opposed to the wearing of American flag t-shirts threatened racial unrest and outright violence – and their threats were used to deny First Amendment rights of speech and expression by American students with American flags in American schools.

The threat of violence from the Mexican and Mexican-American students at Live Oak High should have been thwarted and punished based upon the 1919 United States Supreme Court case Schenck v. United States.

Charles Schenck, during World War I, was accused, along with other Socialist party members, of violating the 1917 Espionage Act – prohibiting “destruction of military recruiting.”**

Schenck protested United States involvement in the Great War via anti-war pamphlets. He argued that the Espionage Act “prevented full public discussion on the war issue,”** and thus violated his First Amendment rights as found in the Constitution. Schenck lost his Supreme Court appeal on the grounds of what Justice Oliver Wendell Holmes defined as a “clear and present danger.”**

“Holmes’s analysis considered the context of the speech as well as the intent of the persons who sent the leaflets.”** INTENT. What is the intent of the Live Oak High School students threatening violence should other students don the American flag t-shirts in an American school? Clearly, violence; disruption of school activities, while wearers of the t-shirts intended to simply go through their school day wearing t-shirts adorned with the American flag.

“Holmes distinguished wartime and peacetime contexts and concluded that Schenck’s words constituted such an evil since the statutes applied to conspiracies as well as actual obstruction of the military. Under the statute the action did not have to be successful in order to violate the law.”**

The threats – whether carried out or not, present a clear and present danger and violate the law as outlined in Schenck. Those Live Oak High students issuing the threats of racial violence and disruption of daily school activities are the ones who should have been punished. After all, with the virtual zero tolerance policies regarding bullying, why were the threatening students not suspended? Instead their miscreant behavior was rewarded by the 9th Circuit Court out of fear. This case should absolutely be appealed to the United States Supreme Court.

Students wearing t-shirts with American flags, Mexican flags, another country’s flag, or no flag at all should be both permitted and welcomed on campus in an effort to demonstrate First Amendment freedoms of speech and expression. In fact, such an allowance would be analogous to what Schenck himself wanted – “full public discussion of the war issue,” sans an actual war – or not.

As for the distinguishment made by Justice Holmes in 1919 between wartime and peacetime contexts, there are many who would aver that we the people are locked in a culture war for the soul of America. The definition of a culture war may be nebulous, but the results could prove catastrophic to the future of this country and its way of life. The United States will either go the way of the Roman Empire after its roughly 300 years and disappear as it was known, or the people will return to the words of the Founding Fathers.

The case of the Live Oak High School is bigger than simply denying students the right to freely express themselves while allowing bullies to threaten force and succeed. Upon the founding of the United States of America following victory in the Revolutionary War over King George III and Great Britain, Benjamin Franklin was queried as to the style of government to which the new nation would adhere – a republic or a monarchy. “A Republic, if you can keep it,” responded Franklin. It is up to we the people to keep and maintain the Republic. The maintenance therein is the genuine challenge, especially considering the growing number who have either not learned about the history of this Republic or simply do not care.

The violent and those who threaten violence should not be rewarded, nor should the wordless wearers of t-shirts be thwarted in the pursuit of their First Amendment rights of speech and expression – lest the future of the Republic suffer gravely.

While Franklin was ebulliently prophetic about the precarious nature of the Republic from its inception, former President Ronald Reagan 200 years later saw the workings of the people both in and out of government and offered these equally vital words:

“Freedom is never more than one generation from extinction. We didn’t pass it on to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free.”

Sanford D. Horn is a writer and educator living in Westfield, IN.

*The Oxford Companion to the Supreme Court of the United States, P. 875

** The Oxford Companion to the Supreme Court of the United States, P. 758