Excessive bail shall not be required, nor excessive fines imposed... 8th Amendment

In recent days, members of the California State Senate and Assembly have made the reformation of the Bail system a "Legislative Priority" in the State. Their reasoning is that on any given day, 63% of the people held in the States Jails have not been convicted of any crime. They are simply awaiting trial and cannot - for a variety of reasons - make bail.

The Legislative argument goes that the main reason that people cannot make bail is twofold. First that bail levels are set far too high in the State. Second is that the Bail system discriminates against those who are "poor," in favor of those who have money. So the solution that at least two other States have elected to employ is to eliminate Bail requirements for some "low level" crimes.

The history of Bail in The United States traces its origins to 1689 and the Glorious Revolution. And, with just a single word change since, has been a cornerstone of those rights which we have held dear, both as Englishmen and as Americans.

So is Bail really discriminatory? Or is there a bigger problem? Or any problem at all? And why hasn't the Supreme Court addressed it?

Today we look at Bail on Constitution Thursday.

Excessive Bail

CONSTITUTION THURSDAY was born out of an idea that I had in February of 2009. As the Tea Party movement was really just starting to percolate, I though it would be cool to have a &ldquo;Constitutional Coffee Klatch” on a regular basis at a local restaurant or bar where we could eat, drink, read and discuss the Constitution, much as our great-grand-forefathers did. That idea eventually morphed (for a number of reasons) into what was the Afternoons Live Book Guild, but the thought of a pure Constitution time still held very strong sway and I was determined to make it happen.

When I couldn’t get the backing to do it externally, I made the decision in December of 2009 to do it as a part of the show. I looked over the schedule and Thursday was (at that time) the only day we didn’t have a segment so, the 5pm hour looked good.

On January 7, 2010, Constitution Thursday was born.

It’s a sad truth that I wasn’t as organized in those days as I am today. Later it would take a great deal of effort and time to organize the collection of original broadcasts into a coherent list. Also, alas, September and October of 2010, mostly Article II and III, have been lost – although I continue to look for them and every now and then I come across an episode that was missed.

One of the things that I learned early on in the process was that virtually everything that I thought I knew about the Constitution was either wrong or at least incomplete. Moreover, I had no concept of &ldquo;Incorporation,” no real understanding of the Supreme Court System and quite frankly my vocabulary skills were rusty. All of those things have markedly improved through this process.

As a former Instructor, I learned a long time ago that I learn best when I am teaching. So all of these broadcasts have a feel to them that I am learning along with the audience. You are in fact, coming with me on my journey to discover the US Constitution.

There are – because these are live broadcasts and for the most part extemporaneous in nature – errors and misspoken words and phrases. Before you jump on one, listen through the end and at least through the first 5-10 minutes of the next episode before you assume that I didn’t catch it. I am sure that there are more that I have not caught, but I make an honest effort to insure accuracy and precise information.

That being said, this is not a college level course in Constitutional Law. I am not (alas) a lawyer (yet). But the Constitution wasn’t written for lawyers and scholars, kings and priests. It was written for all the People, We the People, as it were. I believe with every fiber of my being, that if EVERY American citizen had a level of understanding of the Constitution equal to that gained by listening to these broadcasts, American Liberties would be much safer and our Government today would have a much different tone and approach to governing.

I will add in closing that the nature of the broadcasts changes over time. In the beginning they are more lecture, as befitting of my training as a Naval Instructor and Pastor, with various show cast members and guests added in later episodes.

The biggest single change in the tone and preparation of episodes came in October of 2011, when John Considine was added as the co-Host. John is a wonderful man and very professional (despite his on air persona). But he came to the show from a background in music radio, and had no initial grasp of Constitutional issues and history. To his credit, he jumped in feet first, and as you will hear over the course of time, he becomes not only interested, but passionate about the Constitution and what it means to him personally. It is amazing to me to see the effect on just one person.

And that, is what Constitution Thursday is really all about.

In late 2012, the idea of a &ldquo;working group” to teach and study the Constitution gave birth to the &ldquo;Layman’s Point of View” group. Consisting of the people listed in the main menu, the group seeks to study, comment and share about the US Constitution. It is a diverse group of people and professions and some of the finest people and minds I have ever had the privilege of working with. The melding of the LPOV and Constitution Thursday into a single web presence made absolute sense and gives an additional source of viewpoints and thought, while adding the ability for listeners and readers to participate as well.

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This past week the Chief justice of the US Supreme Court ordered a stay in the beginning of the trial of the case, Juliana v US. this is the second time that the re has been a stay in the famous case, which seeks to force the US Government to pursue policies that would "keep warming in check." Both the Obama Administration and the Trump administration (which submitted a 103 page argument to the Court asking for the stay) have argued that the case is problematic, in that it violates the separation of powers in the Constitution. 
The plaintiffs, supposedly a group of young people, claim that their civil rights have been violated and they have demanded policy changes that would "protect their civil rights" from the effects of global climate change in the future.
This raises a number of questions, one of which is, what exactly is a "civil right?"

Civil Rights

The Congress shall have Power To ...regulate Commerce...with the Indian Tribes....
ARTICLE I, SECTION 8, CLAUSE 3
That's how it always begins. Very small.
A man living in Oklahoma has a girlfriend who has an ex-boyfriend who gets into it with the man. In a gruesome crime, the ex-boyfriend is murdered, his genitals left on his chest on the side of the road. Not being a criminal mastermind, the man, Murphy, is caught. As there is little doubt and much evidence that he did it, he is tried and convicted of capital murder. The sentenced is death. 
Not so fast...
The crime was committed by a member of the creek nation. The victim was also a Creek. And it appears that the crime was committed on Creek land. That being the case, the state of Oklahoma would have no jurisdiction, it would be a Federal case, requiring a Federal 9not State) prosecution. Because of the laws and agreements with the Tribes, such a crime cannot have a death penalty unless the tribe agrees to it, which they almost never do. 
Not so fast... was it on Creek land? The Treaty of 1831 says that it is, but subsequent treaties (1966) make it less than clear. Did Congress intend to take the land where the crime occurred away? Did they actually do it? Did somebody make a big mistake and forget a sentence in a document more than a century ago? 
And if it is Creek Land, what does that mean to the State of Oklahoma? What if the State of Oklahoma, as we've known and loved it since 1907, isn't the state of Oklahoma? what if it's only half the size it is today? 
Absurd, you say? That's not what the 10th Circuit Court says. And depending on how the Supreme Court rules, it might not be so crazy. By next June there might be a new old Territory and fifty percent less of the State of Oklahoma.
It's Constitution Thursday on The Dave Bowman Show...

What If Oklahoma Isn't Oklahoma Anymore?

The one thing that you can say about the federalists is that they were optimistic. They truly hoped that, truly believed that Americans would see it for what it was and grasp their liberties firmly and protect them for generations yet to come. 
The Anti-Federalists weren't quite so rosy in their outlook. While some were firebrands and dedicated to the idea of State Sovereignty and Confederation, more of them were pragmatic and understood that things had to be changed. But was the proposed Constitution the best way to make that change?
Perhaps the most lucid and well spoken of the Anti-federalist was an anonymous writer who went by the pen name "The Federal Farmer." his writings, which began this week in 1787, were a measured consideration of the proposed government. in fact, of the the three possible forms of government that he saw for the nation, the proposed Constitution probably made the most sense. 
But that didn't mean that there weren't some potential problems that, whoever he was, could foresee...

The Federal Farmer

After recent school shootings, the proposal was made to raise the age for purchasing guns to twenty-one. in at least two cases, challenges were filed and in at least one of those, the challenge was upheld as the practice was seen as being in violation of equal protection and various State laws. 
So now we move to the state of Louisiana. The Legislature there, deeply concerned about the well-being of young and vulnerable women who dance with exposed breasts and/or buttocks for money from patrons who must remain at least three feet away, must be twenty-one years of age in order to do so. 
Naturally, the dancers who performed with exposed breasts and/or buttocks and who were under 21 sued in Federal Court. They are claiming that the law would violate their Constitution right to dance with breasts and/or buttocks exposed for money from patrons who must be at least three feet away. 
Now look, there are a whole lot of issues here that we could get into, and perhaps we will tomorrow. But for now, the question is simply this: does a law restricting the right to dance with breasts and/or buttocks exposed to twenty-one and older meet muster Constitutionally? It's not quite as clear cut as you might think, and it's what we talk about today on Constitution Thursday...

Exopsed Breats and Buttocks

In recent days, we have watched the debate over the nomination of a Supreme Court Justice. While the debate rages around things such as abortion, gay rights, women's rights, and so forth, the single fact remains that these things are rarely the meat and potatoes of what the Supreme Court does. Almost never are those things noticed until after the fact. indeed, very few (if any) questions of any nominee relate to them or to the understanding of how those things might end up affecting our day to day lives.

In 1820, a Pennsylvania man was found guilty of violating a State Law that required him to report for duty as a part of the militia during the War of 1812. He had refused service in the Pennsylvania Militia, and now it was time for the state to lower the boom. But the Feds also wanted their pound of flesh, because they believed that the Congress has powers over the Militia, and this man has spurned those laws. The Court ruled that the 5th Amendment didn't apply because (a) there was no incorporation and (b) the Constitution had not limited states from passing laws to punish people for failing to show up for the Militia and (c) Congress had passed such laws.

Back in 1922, a man was found guilty in the State of Washington of violating the state's prohibition against the production and distribution of alcoholic beverages. Then the fed stepped in and after he was convicted charged him with violations of the Volstead Act, the national law against the production and distribution of alcoholic beverages. He protested, claiming that under the 5th Amendment this amounted to double jeopardy. The Court said that there were two systems of sovereignty, State and Federal. As a citizen, we voluntarily accept that we live under both sovereigns and therefore we can be punished by both for the same act, just not twice by either.

And in 2015, a man was stopped for having a headlamp out in his car. The officer who stopped him smelled marijuana and found the driver was a convicted felon, so he searched the car, finding drugs and a 9mm handgun. The man (Gamble) does not deny this. The state convicted him of being a felon in possession of a handgun, and then the Feds also charged him with the same crime. And the Supreme Court has been asked, once again, to consider whether or not the Dual Sovereignty Doctrine is Constitutional.

Excessive Bail

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