Take Care Clause and the Fundamental Right to Bodily Integrity

The following article is an excerpt from a legal memorandum that I wrote. The “take care clause” is clause 5 of Article 2 of the United States Constitution.

“Solo Star, now you see that Evil will always triumph, because Good is dumb.” ––Dark Helmet, in Spaceballs. Lord Dark Helmet says this just after tricking Solo Star by saying “if there's one thing I despise, it's a fair fight; but if I must, then I must. May the best man win.” Then, approaching to shake hands, “put her there.” When Solo shakes his hand, Dark steals the Schwarz-ring–––from which a (phallic thymbol) laser-sword had emanated during their mock-fight–––off of Solo's finger. He laughs, gloating about how he can't believe Solo fell for the oldest trick in the book, and then says “here, let me give it back”, holding it out, and when Solo reaches forward, throws the ring over his own shoulder (at random?) and down through the grating in the floor. Dark laughs again when Solo just misses catching it before it falls through. He declares in his extra-deep and dramatic voice, “Solo Star, now you see that Evil will always triumph, because Good is dumb.” The Wikipedia article explains that Solo Star begins the movie with a cowboy hat on, but for most of the movie, is wearing no hat. ––from Spaceballs (movie by Mel Brooks 1987), see 10 Best Gags, #5 at 1:33, YouTube.com, and Wikipedia article “Spaceballs”.

It is said that contra principia negantem disputari non potest. (“Against one who denies the principles, there can be no debate”). The public law arises from private law, affectio societatis, through the contract with society. Public law is expected to be held in “multiple custody”, res publica. (In banking or cash handling, the principle of “dual-custody” is fairly well known… it is thought that the likelihood of two cashiers successfully conspiring to steal money is much lower than the likelihood that a solitary cashier might try it. So, by “multiple custody”, I mean the extension of the “social contract” from 2 to n “independent actors in the life-world”.) A contract is expected to accord fair consideration–––a “promise of something of value given by a promissor in exchange for something of value given by a promisee”. The thing of value for the public law contract with society is that we are all to have equal protection of law.

This contract, embodied by the common law, is the result of many years of tradition, refinement, shakedown, and somewhat organized development through the courts, codified in the constitution and statutes. It is intended to be a consistently fair and equitable set of rules that we can all live by. Presumably, anyone with a standard public school education will have a solid grasp on the fundamental bases of law–––share, don't steal, don't hit people, don't yell at people, don't tell lies, be fair, honest, and considerate of others, don't run with the scissors; We all must agree to abide by them. There are natural social consequences for not doing so. In the grown-up world, we are all supposed to be protected by the laws equally because each and every one of us has the same set of rights. Those rights are individual rights, not group rights. That means that “white” people have the same rights as “black” people; males the same rights as females; in-group members have the same rights as out-group members; “Jews” the same rights as “Christians”, who have the same rights as “Pagans”, who have the same rights as “Atheists”; When a female breaks the law, she is to be prosecuted just the same as when a male breaks the law; When a lawyer, prosecutor, court commissioner, or judge breaks the law, it's just as much a crime as when anyone else does; (See e.g., Title 18 U.S.C. §241, §242) Because, as individuals–––as independent actors, born into the same pre-existing life-world–––we each have identically the same rights and responsibilities under the law, regardless of socio-economic status, social class, race, gender, religion, hair-color, eye-color, taste in clothing, etc.

Laws must be applied uniformly and consistently. The mandate for uniform operation of–––or equal protection of–––the law demands a consistent logic, not a paraconsistent one. Ex contradictione sequitur quodlibet, is not properly valid reasoning in law. That is to say, there are to be no double-standards; nobody is above the law; that is, each and every one of us stands in precisely the same relation to the subject of the law; What is illegal for one person to do is also illegal for any other person to do. An action that is illegal implies that a substantially similar action is also illegal, but also, an action that is not illegal implies that a substantially similar action is also not illegal, provided that it does not too closely approach infringement upon or violation of anybody's fundamental rights.

Now, addressing the “circumcision” issue: The crime of “statutory rape” is predicated on the idea that a minor is not qualified to make certain decisions regarding per own reproductive or procreative capacity or whether to engage in sexual activity; and that an adult in a special position of trust or authority can easily hold undue influence over the minor, and so it is unlawful and a crime against the public law–––the contract with society–––for an adult to engage in sexual intercourse with a minor, even if the minor is sexually mature, wanton, and not physically harmed by the sexual intercourse. Consensual adult sexuality comes with undeniable risks and responsibilities, and young people must be carefully and diligently taught about those things before they are considered capable of making good decisions that properly manage those risks and take care of the responsibilities, at will. [1] Thus, the rationale for the malum prohibitum “statutory” sexual offenses can be said to be founded upon the person's capacity to make, of per own free will, an informed choice regarding per own bodily functions or bodily integrity, taking into account the potential for undue influence that an adult may have over the minor.

There is, clearly, a discern able difference in severity between a so-called statutory “rape”, e.g., of a sexually mature and willing teenager by an adult, where no coercion or physical harm is alleged, malum prohibitum; vs. actual forced sexual-intercourse, rape per se, e.g., including coercion as well as physical and psychological trauma, malum in se. Surely a range of degree of severity exists across the spectrum of malum in se crimes against the person, in general; e.g., across the spectrum through reckless or knowing endangerment, attempted assault, assault, aggravated assault, kidnapping, sexual assault, attempted battery, battery, aggravated battery, sexual battery, rape, manslaughter, through murder… Inherent within and in common within each of those crime's definition is an infringement or violation of a person's bodily integrity.

It can hardly be argued against that “a fundamental purpose of Law is to ‘protect the innocent’”, nor against the idea that law enforcement may be reasonably expected to enforce the law when they become aware that a malum in se crime against a person has been committed; they have a professional duty. For example, it is likely that ‘any reasonable person’ will agree that if the police know about a murder, they must investigate the crime, and identify, locate, and prosecute the perpetrator; it is unlawful for them not to, because they have a constitutionally mandated duty to take care of; they are required to swear or affirm that they will “discharge the duties of the office with fidelity.” This implies that there exists a fundamental and inalienable right to bodily integrity that is inseverable from the primary body of the public law contract with society. This right to bodily integrity can be said to be among the unenumerated rights guaranteed by the constitution. It is so fundamental that nobody thought it needed to be explicitly listed when The Constitution was codified or formulated. Of course there would be laws against this sort of crimes! They are at the very foundation of Law itself; Lex lata, pacta sunt servanda et jus cogens; de lege ferenda, de sententia ferenda. Quod est inferius est sicut quod est superius. Quod est intus est sicut quod est extra.

«[T]hat a liberty interest is not the subject of an incorporated provision of the Bill of Rights does not remove it from the ambit of the Due Process Clause. I cannot improve on Justice Harlan's statement of this settled proposition: “[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.” Poe v. Ullman, 367 U.S. 497, 543 (1961) (dissenting opinion).» Albright v. Oliver, 510 US 266, 306,307 (US Sup. Ct. 1994).

In a similar vein–––consequentia mirabilis–––to pass a new law–––whether by legislative act or by judge-made law–––to “legalize” one specific form of mayhem, for example, would create a serious contradiction, as would arbitrary or capricious “selective non-enforcement” of existing laws! Even more concerning to a reasonable person would be a law that fails to protect one gender to the same degree as the other, or one that reduces the penalty that should normally have been applied under existing laws that prohibit malum in se crimes that by definition cause irreparable and permanent disfigurement and permanent loss of normal function, but only when the crime is perpetrated against members of one gender… Who would disagree with that general yet curiously directed statement? The perpetrators of mayhem? People who don't agree with the fundamental tenet of contracts and treaties that “agreements must be kept”?

It becomes clear upon careful examination of documents such as The Doctors Opposing Circumcision Genital Integrity Policy Statement (attached as exhibit), as well as documentation of normal male anatomy and function to be found on the Circumcision Information and Resource Pages, what constitutes “normal anatomy and function” of the adult penis with intact prepuce. It will be clear upon careful study of those factual disclosures that by definition, a permanent disfigurement and permanent loss of normal function results from the non-thereputic “penis desensitization surgery” that some practitioners sell as “circumcision”. The brochures and dogma provided by the people who sell the procedure try and “make people think”, through censored and incomplete and deliberately misleading “management of perceptions” that circumcision is somehow “potentially” medically beneficial. Those unethical practioners commit fraud when they leave out very pertinent and relevant information concerning the true anatomy and function of the foreskin. Without that information, neither the minor nor the parent can be said to be making an informed decision. For best results, important decisions must be informed decisions.

My son does not want to be circumcised. The idea frightens him. It's his body, and it's his choice, but he is not qualified, intellectually or legally, to make that decision until he is an adult, and once he is one, he'll know enough about it to know better. In terms of religious justification, our son attends LDS Primary Sunday School. He is learning the LDS version or rendition of the general “Christian” faith or kraft de heilengen, e pluribus unum. He attends LDS Sunday School due to his Mother's insistence, and I do not oppose that. [2] “Appeal to religion” is a logical fallacy, but religion may freely appeal to logic and reason. The Gospel Studies manual for adults that I am familiar with explains the difference between “God's Plan” and “Satan's Plan” for our salvation. The good plan involves free agency, guided through our power of discernment, the bad plan involves submission to the will of Satan, [3] no questions allowed. It also teaches that each of us is a unique individual, born whole [4] and without sin, with a unique spirit from even prior to the point of conception. Anyone who has children of their own or has spent time with children knows that this is most certainly true. They have their very own unique personality and self-will right from the start. [5]

The LDS faith is “Anabaptist”, which means that we do not baptize until we reach the age of self agency, the age at which a child is thought to be capable of knowing right from wrong, and making decisions regarding per's own actions or agency within our community.[6] For better or for worse, right decisions or mistakes, they are to be held responsible for their own actions from that age forward, and may choose to undergo the rite of baptism, a ritual bathing… Not surgery; bathing… of per own free will. If it is against the religion to baptize someone prior to the age of self agency, then certainly it is against the religion to perform prepucial amputation surgery on a pre-pubescent minor! (Presumably, it is much more difficult to botch the baptism of an 8 year old than that of an infant, primarily because you can be more certain that the 8 year old will hold her breath underwater.) It would be sacrilegious to force such a thing upon the child he is today, since it would affect the adult he will be for the majority of his lifespan. And even now, at this age, he does not want his penis to get cut the way his Daddy's was. He trusts me and takes my word for it. My personal knowledge and experience indicates that “circumcision” is evil, cruel, and a criminal imposition of deprivation of the fundamental right to bodily integrity. Properly, it belongs right up there with “crucifixion” on a list of atrocities and things we just don't do to other people in a civilized society.

Clearly a baptism is unharmful and difficult if not impossible to “botch”, a statement that can not be honestly made about prepucial amputation… and clearly, a “circumcision” does, by it's very nature, cause permanent disfigurement and permanent loss of normal function [7], words straight out of the legal definition of “mayhem”. Nobody has the right to impose such a thing upon a child, because it would impose that upon the adult that he will be for most of his life. In Marriage of Boldt, 176 P. 3d 388 (Or. Sup. Ct. 2008), it was determined that a 12 year old minor's own choice mattered[8], when the custodial father who had converted to Judaism wanted his son circumcised, and his Orthodox Russian Catholic mother was very opposed to it. She asserted that her son did not want it done, and that even if he did, he was not qualified–––neither de facto nor legally–––to make that decision at age 12. On one hand, “It's his body, and so it's his choice”, but on the other, a minor is not legally qualified to make that decision on behalf of the adult he will be for most of his life. Because “circumcision” is permanent–––there is no such thing as “uncircumcised”–––the only morally and ethically proper choice is to leave the child intact. No matter which “religion” or “wisdom tradition” one belongs to, this is the same. Nobody is above the law. No law that is contradictory to the fundamental purpose of law itself may be allowed to stand. The “selective nonenforcement” of laws against serious malum in se crimes such as those general laws that prohibit mayhem upon the genitals of an infant is a crime against rights, and misprison of felony.

Nature's design is perfect. There is no reason to alter it.[9] If having a foreskin was not a survival trait, we would be born without them. Most of the males on the planet have intact foreskins, and are very happy with them. How does cutting off part of the body's integumentary system, exposing a normally internal body part and a fresh “surgical” wound to the contents of a diaper or to drying and continual abrasion of clothing somehow “enhance” male hygeine, again? The integumentary system is what prevents pathogenic microbes from entering the body. Integrity. That's a word that, if it means nothing to the Judicial, proves they do not hold it as a value nor posess it as a characteristic. If that's the case, then they may as well just quit showing up to “work”.

Pax et Bonum, Karl Martin Hegbloom, Esq.

I find that the “Law of Chastity” is not something “imposed upon” people. It is more like a codification of a natural law, or of a strong tendency towards a “best practices” in terms of what people have learned–––often the hard way–––and conserved as tradition, handed down from one generation to the next to prevent their progeny from making the same mistakes they made. As we all know, people despise the imposition of arbitrary rules-without-reasons, and will inevitably scoff them or outright disobey them in spite. But general rules based upon sound argument, carefully taught in a forum free of coercion or suppression of opinion, are easily accepted and followed almost as a matter of course. It's part of our nature to listen and learn from our elders. We must be held accountable to make our own contribution to that influence be a true one. Appeal to religion is logical fallacy; but religion is free to, and must, appeal to logic and reason; in fact, that's actually part of our religion! That's self agency. “Choose the Right”.
Despite that they make him wear a “leash”, “cravat”, or “necktie”, the symbolism of which I object to; I also object to neckties on the grounds that they are non-utilitarian item of clothing… or perhaps the function is not merely symbolic? If that's so, and perhaps even if it is merely symbolic of it's form-suggested function, then a dress-code enforcing the wearing of a necktie, or any dress-code for that matter, is a hypocrisy to a church that teaches self-agency. But also, if you like to wear a necktie, you can. So this “dispute” isn't grounds to forbid him from attending. The “Gospel Studies Manual” as well as “The History of the Church” provides grounds upon which I choose to actually endorse having him attend LDS Primary.
Also see the Rider / Waite Tarot card “The Devil” and read about it's symbolism. The devil is perched on the top of a white greco-roman fluted-column pedestal. Before him stands a man and a woman, each with a loop of string (not even rope, just string) around the neck, with the leash-ends of the strings draped over the pedestal and held there by the devil's foot. The loops of the strings are loose fitting. At any time, of their own free will, they could lift the loops over their heads and walk away from enthrallment.
The proper definition of the word “holy” is: Possessing or endowed with the quality or characteristic of wholeness or completeness. Thus, a man is certainly more holy who has an intact foreskin.
I was taught by a bible scholar that the word “sin” comes from an ancient Greek word for “self”. So perhaps “original sin” means “my originating self”, or the “me” that others experience as “my spirit” that “originates” or “emanates” from my body and brain as a result of my physical existence… in other words, my “aura”, perhaps? The use of the word “sin” to mean something like “crime against the public law contract with society” comes from the idea of selfishness or failure to accept and live according to that contract with society, perhaps.
The United Nations Convention on the Rights of the Child, Article 14, asserts that children have the right to «freedom of thought, conscience and religion». I object only to the use of the word “freedom” in the case where it may be interpretted as being a grammatical contraction of the longer form “freedomination” because semantically, that would place it in conflict with the purpose of law itself. I would have chosen instead the word “liberty”.
Because amputation of the penile prepuce is certain to cause permanent disfigurement and permanent loss of normal function, by it's very nature, the crime must carry a strict liability. (In both tort and criminal law, strict liability exists when a defendant is in legal jeopardy by virtue of an wrongful act, without any accompanying intent or mental state. In criminal law, possession crimes and statutory rape are both examples of strict liability offences.) Strict Liability | Wex Legal Dictionary / Encyclopedia, Law.Cornell.edu
Accord The United Nations Convention on the Rights of the Child, Article 12.
What is the natural and healthy response to a threat of violent harm to themself or their offspring that animals have? Under the law, do we not have a right to self defense, and to defense of our children, even against domestic violence? How does the contract with society expect us to carry that out? Who's job is it? Doesn't our contract delegate certain duty of care and thus authority to enforce the law to professionals? What are we expected to do when those professionals do not “discharge the duties of the office with fidelity” to the Constitution they are to “support, obey, and defend”? If they are not doing their jobs, with Integrity, then we are no longer in need of their “services”.