Antinome

Senate to Ban Pictures of Mohammed

This week the Senate is set to debate amending the constitution to ban the depiction of Mohammed in any form:

Majority Leader Bill Frist (R-Tenn.) cast the debate in loftier terms. "Many Americans have come to see Mohammed as a sacred symbol of our nation and its values," he said. "Those who dislike American values have the right to express their opinions even when they are offensive. But I do not believe that the right to desecrate the image of Mohammed belongs in the same category."

Of course, its not Mohammed  Frist is talking about, but the flag.  How many Americans have to think something is sacred before I lose my right to criticize it, mock it, express my contempt for it, "profane" it.   Lots of people believe Jesus is their Lord and savior and lots of people think Christianity is special part of our nation and its values.  Why not amend the constitution to prevent the denial of the divinity of Jesus? 

Seriously, is it really necessary to piss on the constitution and its principles to "protect" the flag. ( By the way should we have a law banning the desecration of the constitution)

Wow this truly is an annual subject, please see this post .  Why it seems particularly to get me upset is this:  I truly believe that the United States of America was founded on a set of ideals that make it better than nations that are merely geographic nation states.  What should unite us is not our race or culture but a belief in a certain set of principles.  This amendment truly seems to me a betrayal of those principles.  Its not the only one going on today of course, torture, indefinite detention of (at least one) U.S. citizen without charges or a lawyer(till they were forced to), hiding behind the national security privilege (where the hell is that in the constitution). 

The Flag (redux)

Once again the flag burning amendment has come up.  This was the subject of my very first substantive blog post here.  I can't say it better so I am just going to quote myself:

The American Flag is strong. It needs no protection. The American Flag is knit of principles and ideals, it is not a construct of cotton or nylon. It is a symbol of something special in this world, a symbol of a country built on political ideas: of liberty, equality, of the freedom to speak ones mind. Mere burning or tearing it cannot harm it.

I love this country, I love what it stands for. One of the things that it stands for is that people have the right to protest, to express their ideas, to criticize the government or the people. Every time someone burns the American Flag in this country they are trying to make as strong a statement as they can to show their disdain, their contempt for America. And every time they do so and no sanction comes down upon them, America stands tall, it remains true, and it shows that it is truly a place that believes in the principles that it espouses. It is a moment of pride. The American Flag can take their contempt and rise anew from it. Simply put, it is better than those that would show it their anger and hate.

You want to hurt the American flag, truly hurt it. You undermine the principles for which it stands. You curtail freedom of dissent to protect the symbol not the substance. One cannot hold an ideal and abandon when it hurts. Principles come with a cost.

My opinion has in no way changed.  I have always felt that patriotism in America is and should be more than most countries' simple nationalism.  I love the fact that I live in a country that is based on the idea that free expression and thought is essential and that political dissent is vital. 

That the Senate is inching closer each time to having enough votes to pass such an amendment saddens me.  Its is not that a flag desecration (whatever that means) amendment will materially affect my life, but this goes to the core of my ideals about this country. 

Professor Volokh has a good post on this.   

Its Not About Tolerance

The transcript of the oral argument of the Texas Ten Commandments case is out. Justice Scalia makes the following comment:

20 JUSTICE SCALIA: It is a profound

21 religious message, but it's a profound religious

22 message believed in by the vast majority of the

23 American people, just as belief in monotheism is

24 shared by a vast majority of the American people.

25 And our traditions show that there is

1 nothing wrong with the government reflecting that. I

2 mean, we're a tolerant society religiously, but just

3 as the majority has to be tolerant of minority views

4 in matters of religion, it seems to me the minority

5 has to be tolerant ofthe majority's ability to

6 express its belief that government comes from God,

7 which is what this is about.

This is what Scalia wants, a country where minority religions are tolerated but where the majority religion gets a prefered place in government (ie express its belief through government action). But the Freedom of Conscience embodied in the First Amendment (and the no religious test clause) is more than about religious toleration by the government or by the majority. If fact "toleration" of religion was what was rejected. Thats what England had. George Washington's famous letter to the Hebrew Congregation in Newport makes this point clearly:

The Citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.

See also Blackstone's Commentaries: with Notes of Reference (1803) by St. George Tucker. (1)

Even in countries where the crucifix, the rack, and the flames have ceased to be the engines of proselitism, civil incapacities have been invariably attached to a dissent from the national religion: the ceasing to persecute by more violent means, has in such nations obtained the name of toleration . In liberty of conscience says the elegant Dr. Price, I include much more than toleration. Jesus Christ has established a perfect equality among his followers. His command is, that they shall assume no jurisdiction over one another, and acknowledge no master besides himself. It is, therefore, presumption in any of them to claim a right to any superiority or preeminence over their bretheren. Such a claim is implied, whenever any of them pretend to tolerate the rest. Not only all christians, but all men of all religions, ought to be considered by a state as equally entitled to it's protection, as far as they demean themselves honestly and peaceably. Toleration can take place only where there is a civil establishment of a particular mode of religion; that is, where a predominant sect enjoys exclusive advantages, and makes the encouragement of it's own mode of faith and worship a part of the constitution of the state; but at the same time thinks fit to suffer the exercise of other modes of faith and worship. Thanks be to God, the new American states are at present strangers to such establishments. In this respect, as well as many others, they have shewn in framing their constitutions, a degree of wisdom and liberality which is above all praise.

Tenche Cox (2) wrote in 1790

The situation of religious rights in the American states, though also well known, is too important, too precious a circumstance to be omitted. Almost every sect and form of Christianity is known here--as also the Hebrew church. None are tolerated. All are admitted, aided by mutual charity and concord, and supported and cherished by the laws. In this land of promise for the good men of all denominations, are actually to be found, the independent or congregational church from England, the protestant episcopal church (separated by our revolution from the church of England) the quaker church, the English, Scotch, Irish and Dutch presbyterian or calvinist churches, the Roman catholic church, the German Lutheran church, the German reformed church, the baptist and anabaptist churches, the hugonot or French protestant church, the Moravian church, the Swedish episcopal church, the seceders from the Scotch church, the menonist church, with other christian sects, and the Hebrew church. Mere toleration is a doctrine exploded by our general condition; instead of which have been substituted an unqualified admission, and assertion, "that their own modes of worship and of faith equally belong to all the worshippers of God, of whatever church, sect, or denomination."

See also Alexander Hamilton, Report on Manufactures 1791:

Manufacturers, who (listening to the powerful invitations of a better price for their fabrics, or their labour, of greater cheapness of provisions and raw materials, of an exemption from the chief part of the taxes, burdens and restraints, which they endure in the old world, of greater personal independence and consequence, under the operation of a more equal government, and of, what is far more precious than mere religious toleration, a perfect equality of religious privileges) would probably flock from Europe to the united states to pursue their own trades or professions, if they were once made sensible of the advantages they would enjoy, and were inspired with an assurance of encouragement and employment. . . .

The thing that bugs me most in some ways is that I am sure Scalia is familiar with this distinction between toleration and religious equality, yet he uses toleration specifically. And the toleration that he wants is that the minority "tolerate" the majority's right to use the state to proclaim the majority's religious beliefs. That is not religious equality.

(1) Tucker is known best for his edition of Blackstone's Commentaries and his other legal commentaries, including View of the Constitution, one of the first extended commentaries on the newly ratified Constitution. He is sometimes referred to as the "American Blackstone" for his Americanized version of a multi-volume of Blackstone's Commentaries on the Laws of England.

(2) American Political Economist, assistant to Alexander Hamilton, anti Federalist a second tier founder according to this article using him in support of the individual right under the second amendment.

(update, I have fixed the formatting, but only by removing the links)

Skipping an important step

In today's oral argument regarding the Texas 10 commandment case Justice Scalia is quoted as follows:

Scalia took the most assertive stance, saying the monument should be seen as “a symbol of the fact that government derives its authority from God” and such a symbol on state grounds was quite “appropriate,” he said.

Scalia later told Chemerinsky that the American people understood that a display of the Ten Commandments stands for the proposition that “our laws are derived from God.”

Such statements simply both sadden and frighten me.  Even under any sort of original intent argument I do not believe it can be said that the government of the United States derives its authority from God.  The government derives its power from the people not God.  The US goverment does not rule by divine right.  If all Americans woke up tomorrow Buddhists, Hindu, agnostic or athiest, it would not affect the U.S. governments power one whit. 

The most that can be said is that under the political theory that is the underpinning of our constitution is that the people are endowed by their creator or nature's God with natural rights.  Scalia would apparently say that because Government power is derived from the people and the people get their power from God the government gets its power from God. 

But Scalia is leaving something out. One of the absolute rights under natural law is the right of conscience.  As Tucker St. George wrote:

"religion, or the duty we owe to our Creator, and the manner of discharging it, can be dictated only by reason and conviction, not by force or violence."

As each individual gets to decide what obligation they owe their creator (if any) and how they must discharge that obligation, government can get no power from God and cannot derive its laws from God.  The individual alone can decide God has all power or no power over his or her mortal life.  The power of Government does not flow through from God.

Of course another problem with Scalia statement is he is stating that the U.S. govements power not only derives from God but the God of the Old Testament, a particular God and not particularly the God that was talked about when the term creator or Nature's God was bandied about.

Pledge Statutes

The Third Circuit has just upheld a decision striking down a Pennsylvania law requiring that stundents say the Pledge of Allegiance every day as well as sing the national anthem. If they refused, the school notified the student's parents. The Court found (opinion) that the parental notification provision had a chilling effect on the students free speech rights. As this article notes:

The judges concluded that the parental notification provision amounts to viewpoint discrimination, as the provision is only triggered when a student refrains from recitation and not when a student willingly participates in it.

"As the district court correctly pointed out ... a parental notification clause that is limited only to parents of students who refuse to engage in such recitation may have been purposefully drafted to 'chill speech by providing a disincentive to opting out of [the] Act,'" Sloviter wrote, quoting Kelly's July 2003 opinion.

The power of the Pledge is such that the judges felt the need to throw in this affirmation of it in the closing of the opinion:

"It may be useful to note our belief that most citizens of the United States willingly recite the Pledge of Allegiance and proudly sing the national anthem," Judge Dolores K. Sloviter wrote in The Circle School v. Pappert. "But the rights embodied in the Constitution, most particularly in the First Amendment, protect the minority -- those persons who march to their own drummers. It is they who need the protection afforded by the Constitution and it is the responsibility of federal judges to ensure that protection."

Regardless the opinion is a triumph of the substance of liberty over the form of rote patriotism.

The article goes on to state:

Frankel and plaintiffs' attorney Twersky called Act 157 the most restrictive Pledge of Allegiance-compelling statute in the country.

Ahh apparently they have not seen the Texas Pledge Statute. None of this wimpy "parental notification" Instead the student cannot refuse without parental permission:

§ 25.082. SCHOOL DAY; PLEDGES OF ALLEGIANCE; MINUTE OF SILENCE. (a) A school day shall be at least seven hours each day, including intermissions and recesses. (b) The board of trustees of each school district shall require students, once during each school day at each school in the district, to recite: (1) the pledge of allegiance to the United States flag in accordance with 4 U.S.C. Section 4, and its subsequent amendments; and (2) the pledge of allegiance to the state flag in accordance with Subchapter C, Chapter 3100, Government Code. (c) On written request from a student's parent or guardian, a school district shall excuse the student from reciting a pledge of allegiance under Subsection (b).

I don't know if there is a current challenge to the statute, but if the Pennsylvania Statute is unconstitutional because it abridges the students free speech rights, then the Texas statute is clearly also unconstitutional, as it does not even leave the student ANY choice.

via How Appealing

Ostrichs

There is a strange denial of reality regarding the arguments being put forward against gay marriage. Prior to this issue going through the courts and the current controversy people of the same sex were getting "married." They were taking oaths to stay with each other and be faithful to each other for the rest of their lives. More than that, many were taking these oaths in churches before the eyes of their God(s). Within their religions their marriages were in fact sacred. Clearly under the First Amendment the government cannot say these marriages are not religiously sacred.

The relationships exist, the oaths exist, the emotions exist. They are families, raise children in many instances and also split up upon occasion. The only issue is whether their is same sex marriage, the issue is only whether the state will acknowledge these relationships. While I personally think that the claim that people of the same sex getting married somehow harms marriage is completely unfounded, the relationships are already in place, the mythical harm has been done.

As I said before here nothing happened when Vermont began legally recognizing civil unions. The family structure has been ratified, the only problem is the separate but unequal status under the law of civil unions.

What a Surprise

In addition to being a self righteous demagogue, Judge Roy Moore is also apparently quite humorless. (link via How Appealing) While based on the article it sounds like a pretty lame joke, it was also pretty harmless. All the joke implied was that Pryor was perhaps not Moore's favorite person, a fact that is not only self evident but borne out by the response from Moore's camp:

This is just another example of the attorney general mocking Chief Justice Roy S. Moore, who was elected by the people of the state of Alabama," said Jessica Atteberry, a spokeswoman for Moore. "It is an example of his arrogance and disrespect for the elected officials of this state and nation.

Would that we have heard the last of Moore, but unfortunately I suspect we will hear much more from him and the old error crowd.

Mass. S.Ct has ruled

on the issue of whether denying the right to marry to gay couples violates the Massachusetts' constitution.

Applying a rational basis test (the lowest level of scrutiny) they ruled the bann on gay marriage was unconstitutional. The opinion is here (pdf)

The Court cites one quote that I like because it expresses an idea that I hold.

"The history of constitutional law "is the story of the extension of constitutional rights and protections to people once ignored or excluded." United States v. Virginia, 518 U.S. 515, 557 (1996)"

The founding on this Country was based on some great principles. They weren't always applied very well.

Jose Padilla

Oral arguments were this morning in the Second Circuit on Padilla's habeas petition. Padilla is a United States citizen being held incommunicato and without charges as an "enemy combatant" solely on the basis that the preseident has designated him as such. The government has taken the position there is no judicial review of such a determination beyond whether there is some evidence that he is an enemy combatant. Of course they also contend that an affidavit provided by a DoD official is sufficient. They also don't want him to have access to a lawyer. In addition they forum shopped the case by moving him from New York to South Carolina

Here is the District Court opinion.

Here is the government's brief (pdf)

An amici Curiae Brief from NYSACDL (pdf)

IHere is a link from the Lawyers Committee on Human Rights that links to their (among others ) amicus briefs

On the forum issue, I have not seen (though I have not read alll the briefs) any one put forth Ex parte Bollman & Swartwout, 4 Cranch 75 1807:

But in this case, a tribunal for the trial of the offence, wherever it may have been committed, had been provided by congress; and at the place where the prisoners were seized by the authority of the commander in chief, there existed such a tribunal. It would, too, be extremely dangerous to say, that because the prisoners were apprehended, not by a civil magistrate, but by the military power, there could be given by law a right to try the persons so seized in any place which the general might select, and to which he might direct them to be carried.

This case arose out of the whole Aaron Burr plot.

Update: The Amicus brief (pdf) from a group of retired judges and lawyers does cite Bollman, but not for the proposition I quote it for.

Still can't find Padilla's own brief.

The Old Error

In some ways there is no question that Judge Moore is right when he says that the Ten Commandments had a role in the course of American law. Heck, IIRC, Connecticut had a period where it instituted Mosaic law as the law of the colony. Many states had heresy statutes. The question is whether the deveolpment of the concept of religious liberty was an outgrowth of this or a revolt against this. The following quote from James Madison seems to be right on point:

I should suppose the Catholic portion of the people, at least, as a small & even unpopular sect in the U. S., would rally, as they did in Virga. when religious liberty was a Legislative topic, to its broadest principle. Notwithstanding the general progress made within the two last centuries in favour of this branch of liberty, & the full establishment of it, in some parts of our Country, there remains in others a strong bias towards the old error, that without some sort of alliance or coalition between Govt. & Religion neither can be duly supported. Such indeed is the tendency to such a coalition, and such its corrupting influence on both the parties, that the danger cannot be too carefully guarded agst. And in a Govt. of opinion, like ours, the only effectual guard must be found in the soundness and stability of the general opinion on the subject. Every new & successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion & Govt. will both exist in greater purity, the less they are mixed together.

James Madison to Edward Livingston, July 10, 1822

The two hundred years of progress towards religious liberty Madison is referring to is from the birth of the colonies through the early Republic. Two hundred more years have past and there are still many, like Moore, who are biased towards "the old error"