About That New Welfare Drug Testing Law.....

Recently, Governor Deal signed a law requiring all applicants for welfare in Georgia to first pee in a cup.

As many, including yours truly, pointed out during the legislative debate, Florida already has a similar law which not only did its own study committee recommend against but is currently tied up in appellate court due to that pesky thing called the 4th Amendment (and based on previous rulings, including a seminal one from....where else....Georgia)

Well, it gets better.

Not only is Florida's law probably unconstitutional, as predicted by experts, it not only doesn't work, it actually costs the state money.

Ushered in amid promises that it would save taxpayers money and deter drug users, a Florida law requiring drug tests for people who seek welfare benefits resulted in no direct savings, snared few drug users and had no effect on the number of applications, according to recently released state data.

Since an overwhelming number of applicants have passed the test and the law requires the state to reimburse the costs of the test to anyone who passes, after four months, the program has actually cost taxpayers over $45,000.


Doesn't work. Costs money. Violates the Constitution.

Governor Deal and the rascals managed to hit the bad governance trifecta.

The Sotomayor Project: An Update

Guns are complicated. I've always known 2nd Amendment issues are far more complicated than the inflammatory rhetoric spewed forth by the gun nuts and gun control nuts.

But everything proceeded according to plan. Then, the 7th Circuit got involved.

Sigh.

The project will proceed but as is my manner, I refuse to show only half my ass. So, I'm currently discussing the finer points of incorporation, supremacy and stare decisis with one of my trusted Constitutional scholars.

The result will come - maybe tomorrow or the next day.

Hey. If the Senate can take a couple of months to pore through this crap, I think should get a couple of days.

The Sotomayor Project

I'm leaving Georgia.

Not physically, but virtually.

For the next week, I'm going to take a break from Georgia politics and explore the nomination of Judge Sonia Sotomayor to the Supreme Court. The opportunity to write about one of our more fascinating and infrequent Constitutional processes is too enticing.

I'm not a lawyer, but I love arguing with lawyers. Even though I am not lettered in the law, I feel I have a good layman's understanding of the Constitution and the workings of the courts. However, everything I write will be from a lawyman's perspective. If I don't know something (for example if the court has ever clearly defined the term "arms), instead of diving into case law, I'll say I don't know. Hopefully, my common man jumping off point will encourage those lettered in the law who visit this little community to jump in and provide elucidation for us all.

My starting point for this series of essays will be the SCOTUS blog's analysis of Judge Sotomayor's rulings on civil cases while a member of the 2nd Circuit.

As with all my writing, it will not be objective but it will attempt to be fair. My hope is my own analysis of the cases will continue the exploration of the "griftdrift philosophy" I expressed on Monday.

Expounding on this principle further, I would never expect to agree or disagree with any potential Justice but I always expect to at least understand the reasoning, logic and law behind the opinions.

Although in the current climate, I am considered left leaning (I'm convinced 50 years ago I would be considered a moderate Republican), I will approach each case with my personal filters of leaning to the left on individual liberty and leaning to the right on issues of federal supremacy. These personal standards will be my guide and the paint peeling talking points already being blasted about will be ignored.

That's what we'll be doing for the next week. Hope you jump on for the ride.

And we might as well make the first leap a breath sucker - on Monday - 2nd Amendment.

The Griftdrift Judicial Appointment Philosophy

It's pretty simple.

I don't give a damn about ideology.

If they're qualified - they should be confirmed.

Sotomayor is qualified. Confirm her.

Move on.

My Morning

Kill him ~McCain/Palin supporter

Outstanding ~Front page of Peach Pundit on the news that Troy Davis will die

Just as certain as the dog days of August or the arrival of September’s harvest moon, the staple of every election cycle arrives at our doorstep. It’s called: Scare the ignorant. ~Atlanta Journal Consitituion Assistant Editorial Page Editor Jim Wooten's view of the tactics of Democrats

There are days when ghosts seem to swirl in the air.

Do we see clearly or do we see what we desire to see? Does watching a documentary on the newest section of Arlington National Cemetary cause ruminations of death? Does a coincidental viewing of a fictional parent's death stir something deeper? Is there something not yet in the realm of science which binds together existential experience?

I wish I could write the piece I feel the need to write. It's in there somewhere but I don't know if it refuses to emerge due to my need to not share too deeply or simply because I can't find the words. One day I will write about death and fear. Because writing is what I do.

For now, I will simply say this - fear is not proprietary to one side or the other, nor should it be peddled like a wormy apple and death should never be treated lightly.

My Morning Wooten

Bloody Jim is back.

I can't. I just can't today. I was tempted to repeat the list of those who were on death row but were exonerated and point out Bloody Jim would probably have tried to rush them off to the needle too.

But I can't.

Partly because talking about the death penalty to a zealot wears my soul. But mostly because I understand the difference between innocence and the legal standard of beyond a reasonable doubt and how the recantations fit into the equation. But just like Jim, I am not an expert on these things.

So instead of the polemicists today, you should go listen to the lawyer.

My Morning Wooten

Jim's wearing me out recently. Just a quick morsel today - a small riff on the law of unintended consequences.

“When freedom is taken away from some people I believe they are in a little better position to preserve it for the next generation,” said Huntsman.

Very true. We can only hope the American children in today's high schools and colleges learn from such practices as wiretapping and suspension of habeas corpus.

Heller

The word regulate appears exactly three times in the U.S. Constitution - twice in reference to commerce and once in regard to an armed citizenry.

Despite the First Amendment explicitly stating "Congress shall make no law", we accept restrictions on speech every day, however, mention restricting the ownership of guns and some suggest we cross a rubicon of government intrustion on the individual. It is a confusion which abounds, shockingly has never been addressed by our highest court and ultimate clarity rests on the strange construction of our most discussed federal law.

The Second Amendment may be the most tortuous clause in an aged document laced with dated verbage and 18th century mannerisms. Filled with commas and awkward phrases, it seems to simultaneously grant the government the ability to regulate arms for the purpose of defense yet absolutely states the right of the people shall not be infringed.

With the ever escalating heat of the gun debate, most on both sides ignore this critical nuance. With backs arched, the absolutists either claim all regulation is unconstitutional or claim regulation all the way to prohibition is perfectly reasonable.

Both are wrong and despite the political spin you will hear over the next few days, Justice Antonin Scalia writing for the majority in Heller brilliantly explains why.

...the most natural reading of ‘keep Arms’ in the Second Amendment is to “have weapons...The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity...Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation...Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

The majority ultimately decides that indeed government regulation is allowed in order to maintain security (the underlying purpose of the first portion) but cannot result in an absolute prohibition of individual ownership of firearms (the underlying principle of the second portion).

The District of Columbia with its absolute prohibition of handguns, as Justice Scalia referencing Miller states, weapons "in common use at the time", obviously uses the first clause of the amendment to attempt the utter destruction of the second clause.

Guns will continue to be regulated. However, regulation cannot overwhelm the ultimate right to bear arms. In the majority's view, even though it strongly avers the individual right, both must live in harmony.

It is in those harmonic moments where we discover the brilliance of the founders - radicals all but absolutists none. Whether "strict constructionist" or advocate of a "living document, all must understand the underlying principle of our greatest document is idealism tempered by reason.

Through this philosophical filter, Justice Scalia shows the Second is not so discordant after all. In fact, it sings.

My Morning Wooten

Can you spot the logical fallacy?

Cheap rent is a form of public money given to a preferred group. You take their money, you invite their rules — and their meddling. The solution for the Scouts is to sever all ties with government, to either buy the headquarters or negotiate for the city to buy out its interest in the building and to relocate.

If Philadelphia is successful in punishing the Boy Scouts, it will be a sad day for community and for groups like the Scouts that have a reasonable basis for enacting and maintaining the membership qualifications they do.

Is it really so hard to understand that if you receive a government subsidy you cannot discriminate? Really? In 2008?

Editorial Note: I normally don't comment on commenters. In fact I have criticized others for doing so, but here I'm going to make an exception here. Notice the first commenter jbmlaw, who obsessively tends to be the first commenter on all of Jim's pieces, rolls out the tired "predator" meme. Way to tee it up Jim.

My Morning Wooten

Sara has it.

I will add that I love the decision. It's exactly how the court works at its best. The two ideological poles balanced by the reasoned middle - a middle which contained elements of both of the poles. The court works best when all voices are heard but the ultimate decision is based on the law and the evidence. Crawford vs. Marion County certainly fits the bill.

Of course nothing will prevent those on both sides from using it to further stir political doomsaying.

Dover and Darwin

We seem to be all over the place today but this is just too good to pass.

In 2004, the tiny town of Dover, Pa. became the latest battleground in the evolution wars. The result of the school board's decision to require science teachers to read a statement including the specious "evolution is just a theory" argument along with a recommendation for students to read the Intelligent Design screed "Of Pandas and People" was a monumental estasblishment case in Federal Court.

PBS Nova has produced a documentary which not only tells the better than fiction tale of the case but gives one of the best lay explanations of both evolution and science I have ever seen.

It's two hours long but it is worth every precious second. Watch it. Make your friends watch it. Make your children watch it.

Many might see Dover as the highwater mark of the ID movement, but it all it takes for the scurrilous beast to rise again is ignorance.

Watch the videos here.

State Public Defender Resigns

The head of the State Capital Defense program Chris Adams has stepped down due to what he perceives as a lack of resources.

In a letter sent Thursday to the Georgia Public Defender Standards Council, Chris Adams said the council should "tell the truth" to the courts about the lack of resources and halt all capital proceedings until there are enough resources for the office's lawyers to do their jobs.

And before some right wing screed master starts chirping about throwing away good money on bad people, we should all take another look at the 6th Amendment of the U.S. Constitution.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Don't like it? Too bad. It's the law.

For those with an insatiable curiousity for case law, you may also want to check out Powell v. Alabama and Hamilton v Alabama. Both cases in Alabama. Hmmmmm. Wonder why.

Jim Maddox Is On My List

Atlanta City Councilman Jim Maddox has proposed a new city ordinance to allow organizers of any event to corral those with opposing views in "Free Speech Zones".

Why do well intentioned people not understand the First Amendment? What in their little do-gooder brains prevents them from comprehending two simple things?

1, Speech, like water or air, finds a way to be free. No doubt, there are already activists out there looking this thing over for loopholes and ways to dance a thousand angels on a pinhead.

2. The Supreme Court has pretty steadfastly supported the concept that speech is only restricted when there is "imminent danger". Not imagined danger.

Mr. Maddox, I don't believe your are one fo the usual nuts who argue free speech should be limited. But I do believe you are a fine example of the road to hell.

h/t: Political Insider

Whitehead Endorsed By Constitution Burners

Jim Whitehead, the putative front runner in the Georgia 10th congressional district open election and also someone who has no problem bringing the crazy, has been endorsed by The Concerned Women For America.

For those not familiar with this particular organization a portion of their mission statement is the belief that the bible is the " inerrant Word of God and the final authority on faith and practice".

Founder Beverly LaHaye crystallized this particular core belief in a 1987 interview in Ms. Magazine.

Yes, religion and politics do mix. America is a nation based on biblical principles. Christian values dominate our government. The test of those values is the Bible. Politicians who do not use the bible to guide their public and private lives do not belong in office.

Article Six, section III of the U.S. Constitution states:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

So, Mr. Whitehead I have a question for you. Will you repudiate the endorsesment of LaHaye and her merry band of constitution burners or if elected will you simply cross your fingers while taking the oath?

Should We Elect Judges?

The founders of our country are deservedly treated with near universal reverence. Which makes their disdain for the will of the people curious. Perhaps they were a product of the time, trusting reason over passion. Perhaps they could not completely excise their legacy of English gentry who believed they simply knew better. Impetus and motivation can only be gleaned from the documents left behind but ultimately the truth is relegated to the past. However, the undeniable fact is they did not trust us. At least not completely.

Although the Constitution of the United States grants more power directly to the individual than any document in history, closer examination reveals numerous safeguards against the so-called "tyranny of the masses". Layer upon layer of checks and balances prevent the passion of the moment from eliminating the possibility of sober reflection.

For this reason, the Founders placed the more deliberative wings of government increasingly further from the direct will of the people. The House of Representives is elected directly by the populace. The Senate, until ratification of 17th Amendment, is elected or appointed by the state legislatures. The Supreme Court is appointed by the President and approved by the aformentioned Senate. An elegant system placing those undertaking the most delicate and far reaching matters as far away from direct poltical influence as possible.

However, for some places in this vast country, the Founder's system is simply not good enough. In Georgia and select other states, we elect judges. Including our Supreme Court.

In the past, Georgia's system functioned. Judicial races remained for the most part "non-partisan". Everyone complicitly "jobbed" the system with justices retiring before re-election allowing the Governor to appoint a replacement. As most voters could care less about judicial records, the incumbent inevitiably is re-elected creating a default appointment system.

The tenor changed forever with the re-election of Justice Leah Sears in 2004. For the first time in memory, Republicans, not directly through the party apparatus but through proxies, directly intervened in the campaign against a sitting justice. As is natural in all conflicts, the other side responded in kind. To her credit Justice Sears stayed mostly above the fray.

Conflict brings escalation. In 2006, once again a sitting justice receives attacks from monied proxies. Justice Carol Hunstien chooses to not stay above the fray. Instead the citizens of Georgia are treated to the nastiest, most partisan judicial election in history.

It is obvious to all the system is broken and Representative Ed Lindsey wants to fix it. His solution to the increasing influence of partian proxies is public-only financing of judicial campaigns. For the most part, his reasoning is quite logical; remove the money, remove the influence, remove the ugly stain from a prestigious institution. He must be credited with going where few would dare to tread.

However, for all the valor for his effort, Rep. Lindsey's arguments are based on a foundation with a fundamental flaw. His only reasoning for maintaining the current system is the "will of the people".

The Founders understood prudence sometimes requires removing the will of the people. The question must be asked, why should Georgia continue to ignore their wisdom?

Pro-Life Crazies At The Capitol

Bernita at Blog For Democracy is live blogging the "hearing" on Georgia House Bill 1 (a complete ban on all abortions, no exceptions).

I'm very jealous I didn't join her for the fun.

UPDATE: Grayson's got pictures! GO HERE to hear her version of the snake handling er I mean legislatin!

The Porn Wars: The End?

Once again all is quiet in Johns Creek.

DVD players are probably humming. Lube is probably sliding. Cakes may be are baking in Penis Cake Pans.

The story of the Johns Creek Love shack seems to have quietly sank beneath the wake of the Sugarloaf prostitution ring.

For now the store is open and the elders of the new city have taken no new action. Last reports are Johns Creek Mayor Mike Bodker is meeting with attorneys to formulate a new strategy. My personal feeling is starting a new city is complicated and the powers that be have bigger fish to fry. Fish like police, fire protection and garbage collection. Items that unlike a rather innocuous porn store affect the every day lives of citizens.

So possibly the story ends. At least it does for me. Unless the winds of indigination restart the brush fire, I am leaving the story behind. I appreciate all the feedback provided and look for more stories of this nature in the future.

A denouement. Some have inquired why I have not told the Johns Creek side of the story. The simple answer is I tried. I emailed Mike Bodker several days ago offering him or his spokesman a chance to comment on previous entries or participate in an interview with the same ground rules provided to Mr. Cornetta. So far, silence. If the government of Johns Creek changes its mind, I'll be here. Waiting to tell their perspective.

In the meantime, the Georgia Legislature is in session. The Florida Legislature is about to enter session. And we are bombing the hell out of Somalia. In the griftdrift world, porn goes back into the drawer. Waiting for the day we once again need a little stimulation.

The Porn Wars: Trucks A-Rollin!

It's past 10:30 and trucks are probably rolling in north Fulton. Earlier today, Love Shack owner John Cornetta told me he would be restocking his Johns Creek location with adult material. Earlier he removed all adult DVDs and toys to comply with a federal court order.

Mr. Cornetta stated that before 11:00pm tonight he would add 20,000 adult DVDs and 5-6000 adult magazines. Despite this massive increase in inventory, he believes his store will contain around 22% adult material. In his mind, well below the new Johns Creek standard of 25%.

The ongoing inventory battle is not the only battled being waged. On the legal front, Mr. Cornetta's team will file suit in federal court claiming a constitutional issue with the new Johns Creek ordinance. At the time of this post, the Love Shack legal team is still discussing the exact strategy for the legal battlefront.

Despite the increase in adult inventory, Mr. Cornetta claims about 90% of sales are non-adult. He proudly discusses his smoke shop business and then points out his comic books. He says he originally added the books in order to comply with the court order but they have been selling well. So well he has ordered more for his other stores. When asked if it the books were like an impulse buy in the checkout counter of a grocery store, Mr. Cornetta replied, "Yeah, like a box of Tic-Tacs".

There is little doubt Johns Creek will have something to say about the sudden influx of adult oriented material. Tomorrow begins a new chapter in the north Fulton porn war and Drifting Through The Grift will be there.

The Porn Wars: Showdown Fizzles

3:00 was supposed to be high noon in Johns Creek but only members of the local media showed up. Yesterday, District Court Judge Thrash ordered The Love Shack to reduce its adult material to less than a "significant amount" by the deadline or face continuing fines. Possibly the reason for the no-show by Fulton County is owner John Cornetta complied with the court order. Mr. Cornetta stated "out of an abundance of respect for the Federal Court" he had removed all adult material except for a "few adult DVDs".

Despite the apparent tactical retreat, Mr. Cornetta is not giving up the fight. He even vows to "run for mayor [of Johns Creek] if this doesn't stop".

Cornetta pointed out concessions he has offered Johns Creek including allowing a Police substation to occupy a portion of the store rent-free, a fence surrounding the parking lot, more lighting and video security. When asked if the fence would be simple chain-link or a privacy barrier, Mr. Cornetta responded "whatever they want within reason".

Johns Creek resident Kim Tye not only observed the scene from the parking lot but also accepted an invitation from Mr. Cornetta to tour the store with no media present. Ms. Tye stayed in the store for some time and emerged unchanged in her stance on the existence of the store but possibly with new perspectives.

She stated that Mr. Cornetta was a "nice man" and "not the monster portrayed in the media". When asked if there was room for compromise between the store and the community she said, "I would still rather it be gone" but "there is some room for discussion". She was unaware of Mr. Cornetta's offer to house a sub-station and build a fence and said she will follow up on these issues with Johns Creek mayor Mike Bodker.

At midnight tonight, the matter shifts to the newly minted Johns Creek ordinance requiring businesses to contain less than 25% adult material. Mr. Cornetta stated he is not only compliant now but would also be compliant under the new ordinance. In his words, "we've covered every "or"".

For now the battlefront is quiet but the war is far from over. Stay tuned to Drifting Through The Grift later tonight for possible breaking news.

The Porn Wars: Love Shack Gets Little Love

It's all about paint. Attorneys for both Love Shack owner John Cornetta and Fulton County plumbed the depths of analogy in an effort to clarify District Court Judge James Thrash 12-20-06 contempt order. Analogies were necessary due to the wording of the order which commanded the Love Shack to reduce its adult inventory to less than a "significant amount".

The crux of all arguments lay in those peculiar words.

Fulton County Attorney Steve Rosenberg stated that the Love Shack had not complied with the order and offered as evidence The Love Shacks own affadavit which stated the store still contained 2312 adult DVDs and 1647 sex toys. He compared this to his time in criminal prosecution where a police report stated a residence had a significant amount of drugs. For example, a significant amount could be "40 hits of crack". The argument The Love Shack put forward in its brief is inventory had been reduced by a "significant portion" not a "significant amount". He pointed out Judge Thrash had not used this term and that in context, as with the crack in the drug arrest, a significant amount still existed.

Mr. Rosenberg stated, "It's as if you ordered them to paint a house black and they painted it deep charcoal gray and then we disagreed if it was black. In this case they painted the house pink".

Mr. Cornetta's attorney Louis Sirkin countered that if the judge had ordered his client to paint something a deep red this is what would have been done. However it is as if the judge ordered something painted red and now both sides were arguing if it is truly red. He argued that his client had made a good faith effort to comply with a vague court order. As evidence he presented county and city ordinances that ranged from the City of Atlanta requiring less than 25% of floor sales to Warner Robins requiring less than 50% of sales in a 90 day rolling period. Mr. Sirkin stated his client had chosen what he felt was the most restrictive parameters and attempted to comply.

In the end, Judge Thrash was not moved. Apparently, he saw pink where The Love Shack attorneys saw gray. He stated in his ruling that he had deliberately used the term "significant amount" in order to prevent Mr. Cornetta from manipulating his inventory in an effort to comply. He went on to say he could not see how "anybody would see compliance" given the amount of adult material remaining. He specified his intent was number of items, not percentage or portion.

He ruled The Love Shack in contempt and ordered compliance by 3:00pm tomorrow. The Love Shack could comply by reducing its inventory under a "significant amount" or closing its doors. Until that time the business would be fined $1000 per day retroactively to 12-21-06 . He also stated his ruling would termintate at 12:01am on 1-5-07 at which point Johns Creek would have jurisdiction. He added the ruling and fine would be suspended if The Love Shack complied by the deadline.

Mr. Sirkin asked for clarification of "significant amount" and Judge Thrash replied "anything more than a few".

Fulton Attorney Rosenberg claimed victory although his side did not reach the goal of closure. He concluded the ruling to mean The Love Shack was operating without a license. This would prevent any kind of "grandfathering" once Johns Creek ordinances began enforcement.

On 1-2-06, Johns Creek passed new ordinances including a highly restrictive adult ordinance that includes any business to wait 20 days for approval. The new ordinance goes into effect at 12:01am, 1-5-06.

Not surprisingly, Mr. Cornetta also claimed victory. He stated he was still in business and not in jail. When asked about the fine, Mr. Cornetta stated he was "ready to pay out of my pocket right now". When confronted about the amount of the fine which would have exceeded $10,000, Mr. Cornetta pulled out a roll of $100 bills and a black American Express card. He explained that a person had to "spend $300,000 a year" just to maintain such an item. He said $13,000 did not bother him as he had spent more on his wife on New Year's Eve. He was quick to clarify he did not want to make light of the money and his real purpose in this was to fight for what is right. He also claimed to have previously turned down a deal from the Fulton D.A. stating "let me go to jail".

Cornetta also plans to increase his inventory. Now that he is in contempt and with no hard limit on his inventory, his immediate plans are to increase inventory back to 25%. However, he stated he and his attorneys are discussing multiple strategies.

For now, The Love Shack remains open. D.A Rosenberg was unclear if Fulton County will attempt another closure tomorrow at 3:00pm but indicated something would happen. In the meantime, Johns Creek's new ordinance goes into effect in less than 30 hours. When asked if this new chapter in the saga would send everything back to square one, Rosenberg shrugged and smiled.

As for Cornetta, he says, "If Johns Creek comes an arrests me, where are they going to put me? Mike Bodker's apartment?"