When testing the constitutionality of government action, Courts determine first if there is a basis for the government action. Next, the court determines if the government action impacts an individual right. If so, the quality of the government basis is weighed against the quality of the individual right. The highest form of an individual right is a fundamental right. A list of established fundamental rights follows:
The Right to Procreate is a Fundamental Right
In Skinner v. Oklahoma, 316 U.S. 535 (1942), the U.S. Supreme Court held that strict scrutiny of the classification that a State makes in a sterilization law is essential, lest unwittingly, or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws.
The Right to Travel is a Fundamental Right
In Shapiro v. Thompson, 394 U.S. 618 (1969), the U.S. Supreme Court reaffirmed the right to travel under the 14th Amendment’s Privileges and Immunities clause in Saenz v. Roe (1999) and held that government action that impacted free movement between the states required strict scrutiny.
Brandon L. Blankenship is an assistant professor, continuing legal education presenter, and business educator. He and his wife Donnalee live on their hobby farm south of Birmingham, Alabama.
“Song for Justice” is a stand-alone version of a movement from the large-scale work “Tuvayhun – Beatitudes for a Wounded World.” That is what my faith teaches, to come along side a wounded world with beatitudes.
These lyrics follows Matt 5:6, “Blessed are those who hunger and thirst for righteousness, for they will be filled.”
Restorative justice advocates … argue that when the state takes over in our name, it undermines our sense of community.1
This phenomenon can also be observed when a response to an injustice or harm is commercialized. People may think, “I gave to the church so I have no personal responsibility to give to the poor or feed the hungry.” Or, “isn’t that why I pay taxes?”
Restorative leadership maintains a sense of personal responsibility even when a personal objective becomes a community objective.
Brandon L. Blankenship is an assistant professor, continuing legal education presenter, and business educator. He and his wife Donnalee live on their hobby farm south of Birmingham, Alabama.
This post is used as source material for Prof. Blankenship’s courses.
Officer Theandra “T” Bose was proud to be a law enforcement officer in the State of Ohio. She was the first person in her family to graduate college and the first person to have a job with benefits. Officer Bose was proud of her accomplishments and she was also lonely. Working a full-time job and being a full-time college student didn’t leave a lot of time for friends, family, or socializing at all.
Officer Bose’s Police Department had adopted the Code of Ethics of the International Association of Chiefs of Police. After three years of experience, other Department policies allowed her to accept private security contract(s) for payment provided that it did not interfere with her scheduled work hours. She was still the lowest rank in her department and so she was in the lowest pay scale. Officer Bose’s first private security job was at a wedding. She needed the money.
Right before Officer Bose started with the Department, all but 10% of the senior officers retired in response to a new program implemented by the Department (in cooperation with the State Retirement Fund) to reduce costs. Even though the measure did reduce costs, inexperienced officers, like Office Bose, were often left with little guidance and had to figure things out for themselves.
Officer Bose worked the hours required to satisfy her private security contract without incident. Most of the wedding guests had left and as she was leaving, one of the guests invited her to stay for a post-wedding party. Officer Bose stayed for the post-wedding party. It was actually nicer than the wedding reception. The DJ moved to a small banquet room, two open bars were waiting and the food service was really good (better than the cucumber sandwiches at the wedding reception).
A guest ask Officer Bose if they could touch her badge. “Sure,” she said. “After all,” she thought, “the Department is always asking us to do things to help our public image.”
“Wow, your badge is heavier than I thought it would be,” the guest said. Then the guest started showing the badge to other guests and letting them feel how heavy it was.
At some point, Office Bose noticed a small group of people in the back with a powder that looked like cocaine. She looked around and found the person who invited her to the post-wedding party.
“Hey, is that what I think it is?” Office Bose asked.
In response, the guest offered Officer Bose a rolled-up dollar bill.
It took Officer Bose 30-45 minutes to track down her badge and leave.
After the party, a video circulated via TikTok of the wedding party showing a man holding a police badge. Text on the video suggested that “one or more people at the residence had sniffed cocaine off the back side” of Bose’s badge.
An internal investigation ensued against Officer Bose.
In Ohio, Cocaine is a Schedule II drug. Its possession, promotion, sale, distribution, manufacturing, and /or trafficking is a felony. Specifically, Ohio law provides that:
Possession of a Controlled Substance ( § 2925.11(C)(4) ORC)
Cocaine possession is a felony of the fifth degree in Ohio. If the defendant was found to have five grams of cocaine or more, it is a fourth-degree felony. Between 10 and 20 grams is a third-degree felony. Between 20 and 27 grams is a second-degree felony. Between 27 and 100 grams is a first-degree felony.
Trafficking and Selling Drugs ( § 2925.03 ORC)
Trafficking in cocaine is a felony of the fifth degree. If the offense was done in front of children or close to a school, or within 5 to 10 grams, it is a fourth-degree felony. Between 10 and 20 grams is a third-degree felony. Between 20 and 27 is a second-degree felony, and between 27 and 100 is a felony of the first-degree.
Illegal Manufacture of Drugs ( § 2925.04 ORC)
Illegally manufacturing a drug listed in Schedule II is a felony of the second degree in Ohio. The charge is increased to a felony of the first degree if it occurred in front of a juvenile or within the vicinity of a school.
Brandon L. Blankenship is an assistant professor, continuing legal education presenter, and business educator. He and his wife Donnalee live on their hobby farm south of Birmingham, Alabama.
I think I may have discovered the first regretitation mentioned in the history of Western Civilization.
As you may remember, in the Illiad, Alexandros (Paris) and his brother Hektor visit Sparta and are treated hospitably. When they leave, Alexandros takes Helen (Menelaus’s wife) back to Troy. Menelaus and his brother Agamemnon raise a 1,000-ship fleet and descend on Troy to take Helen back.
Agamemnon makes a proposal to save thousands of lives by letting Alexandro fight for Troy and Menelaus fight for Sparta. If Alexandros wins, he keeps Helen and all her possessions. If, however, Menelaus wins, Helen is returned
then let the Trojans give back Helen and all her possessions, and pay also a price to give the Argives (all those who traveled to Troy to fight) which will be fitting, which among people yet to come shall be as a standard.1
This regretitation is instructive because it recognizes an injustice beyond the mere taking of Helen. It seeks to restore not just Menelaus whose wife was taken. Not just the country of Sparta who was humiliated by her taking. But all of the soldiers who left their families and endured the sea-voyage (the Argives) to retrieve Helen.
To qualify as a regretitation, however, the intention informing the restitution must be restorative. Restitution is merely disgorging something from someone which was improperly taken or compensation for an injury done. Restorative intentions are multifaceted and, in part, seek to restore justice, properly ordered stakeholders and communities, global healing, and so forth. Unfortunately, it does not seem that that Agamemnon intended this offer to be restorative. I think he intended not just to restore the Argives. I think he intended to punish Troy with a regretitation so large it would be “fitting” for a nation, like Troy, who would give safe harbor to someone that took another person’s wife. It seems that Agamemnon intended the restitution to be large enough to humiliate Troy and therefore a “standard” to warn all future nations. The intentions informing restorative action may have a humiliating or punitive impact (even with the best intentions, we cannot control how they are received), but the intentions are overwhelmingly restorative.
Brandon L. Blankenship is an assistant professor, continuing legal education presenter, and business educator. He and his wife Donnalee live on their hobby farm south of Birmingham, Alabama.
