Friday, January 27, 2012

Is the First Amendment unconstitutional?

In the wonderland of what passes for First Amendment jurisprudence, oddities abound. The second "prong" of the Lemon test-- a fabricated test of unconstitutional religion-entanglement with no basis whatsoever in the Constitution and not much more basis in logic-- condemns as unconstitutional any government entanglement that advances religion as its primary effect:

2) The government's action must not have the primary effect of either advancing or inhibiting religion;
Supreme Court Justice Antonin Scalia, who sours on the Lemon Test, notes wryly:

...What a strange notion, that a Constitution which itself gives “religion in general” preferential treatment (I refer to the Free Exercise Clause) forbids endorsement of religion in general...
That was not the view of those who adopted our Constitution, who believed that the public virtues inculcated by religion are a public good. It suffices to point out that during the summer of 1789, when it was in the process of drafting the First Amendment, Congress enacted the famous Northwest Territory Ordinance of 1789, Article III of which provides, “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”
Unsurprisingly, then, indifference to “religion in general” is not what our cases, both old and recent, demand.
The mind reels. The template by which the First Amendment is enforced by the courts-- the Lemon Test's requirement that a government action not have the primary effect of advancing religion-- implicitly rules unconstitutional the First Amendment, which is a government action whose Free Exercise clause has the primary effect of advancing religion.

If the First Amendment prohibits government advancement of religion, then the First Amendment prohibits itself, in which case it doesn't prohibit advancement of religion, in which case it doesn't prohibit itself, in which case it does, in which case... .

The reality is that down inside our juricidal rabbit hole the First Amendment means anything secularists want it to mean, as long as censors can silence what they don't like, logic being no obstacle.

24 comments:

  1. Michael,

    Golly, you are obsessive about this minor federal court case, which doesn't infringe on your rights to religion in the slightest. Six of your last 8 threads have been on this topic.

    If you think the federal court got it wrong, why don't you wait for the appeal (if there is one) to a higher court to see if you're vindicated. Linking to Scalia isn't convincing. He's a conservative judge, so it isn't surprising that you'd agree with him. What do the other supreme court judges think?

    You have a funny idea of links. Why anyone would think it appropriate to link judicial rabbit hole to the Wikipedia article on 'Alice in Wonderland' is beyond me

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  2. @bach:

    [Linking to Scalia isn't convincing. He's a conservative judge, so it isn't surprising that you'd agree with him. What do the other supreme court judges think?]

    Four of the nine justices oppose current "separation" Establishment clause jurisprudence, and one justice flip flops.

    [You have a funny idea of links. Why anyone would think it appropriate to link judicial rabbit hole to the Wikipedia article on 'Alice in Wonderland' is beyond me]

    The Rabbit Hole is where Wonderland is. You need to bone up on your Lewis Carroll.

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  3. @bach:

    Care to address Scalia's argument?

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    1. Michael,

      Yes, I will. See my comment about the Northwest Ordinance below.

      What about addressing my comment about your obsession with a minor federal court decision? 6 out of the last 8 threads on this topic! If you think it's wrong (and after 6 threads I am starting to get the general vague idea that you do think it's wrong), why not wait for the inevitable appeal to a higher court which in your opinion will override what you apparently regard to be be a wrong decision.

      Delete
  4. “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”

    It’s amazing how religious people can nourish their ahistorical beliefs with the thinnest of gruel. Here we have a passing mention of religion, notably separate from morality and knowledge, followed by an admonition to build, not churches, but schools.

    Scalia, the epitome of an agenda driven activist judge, conveniently ignores the contemporaneous Treaty of Tripoli that states “As the Government of the United States of America is not, in any sense, founded on the Christian religion” Ratified without controversy by founders who all understood that they had just created an entirely secular government.

    It’s unimaginable that a treaty with language like the Treaty of Tripoli could be ratified today because our political leadership and culture are far more religious today then they where at the time of our founding. As Ray Suarez points out in his book The Holy Vote: The Politics of Faith in America, at the time of our founding a smaller percentage of people went to church less often.

    Scalia is a liar, not a scholar. Scalia is admired because he tells the faithful what they want to hear. He’s the Fox News of the Supreme Court.

    -KW

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    1. KW,
      Do you see secularism under attack?
      Do you imagine a growth in popular faith in such a way that it is literally changing the way America is run?
      I ask these questions honestly.
      It seems to me that you are suggesting the polar opposite to the usual new-atheist mantra of 'religion is outmoded' etc etc.
      I am curious to hear your take on this, if you don't mind.

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  5. "...What a strange notion, that a Constitution which itself gives “religion in general” preferential treatment (I refer to the Free Exercise Clause) forbids endorsement of religion in general..."

    What a strange notion that the Constitution be bound by the restrictions it imposes. What a strange notion that what the Constitution says is prohibited action by the government that operates under it should be a limitation that it should obey.

    Scalia's argument here is just silly. His "strange notion" seeks to impose an equivalency between the provisions of the Constitution itself and the actions taken by the government that operates under its constraints. The answer to Scalia's "strange notion" is that the Constitution is not the government. It is the framework of the government. As a result, the framers of Constitution itself were permitted powers that the government they created by means of the document does not have.

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  6. "Scalia, the epitome of an agenda driven activist judge, conveniently ignores the contemporaneous Treaty of Tripoli that states 'As the Government of the United States of America is not, in any sense, founded on the Christian religion' Ratified without controversy by founders who all understood that they had just created an entirely secular government."

    Hi dim bulb,

    That phrase was removed a mere 8 years later:

    http://avalon.law.yale.edu/19th_century/bar1805t.asp

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    1. That phrase was removed a mere 8 years later:

      And your point is?

      Delete
  7. "And your point is?"

    Are you the intellectually-circumscribed pettifogger or another anonymous poster? In any event, my point is that it obviously was not considered a very important or central statement.

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    1. Judging by the style, I would say: Yes.
      The one and same.

      Delete
  8. "Are you the intellectually-circumscribed pettifogger or another anonymous poster?"

    Yet it is supposedly the non-religious who are angry and quick to insult.

    "In any event, my point is that it obviously was not considered a very important or central statement."

    Which actually reinforces KW's point. The inclusion of the statement in question was entirely noncontroversial. Including it was considered trivial by the members of Congress, many of whom had participated in the construction of the Constitution itself. No one was disturbed by it, or thought it was even worth mentioning.

    Kind of difficult to see how people that indifferent to such a statement could be construed as being somehow dedicated to the idea of building a nation on a Christian foundation.

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  9. I just wrote a rant on my own page about neo-secularism, SP etc.
    Here is a little excerpt that seems appropriate.

    For centuries 'Secular' stood for the compartmentalization of spiritual and material considerations.
    An example?
    With this original use , a friar who has dedicated his life to a monastic existence translating books by hand is 'regular', and a priest who preaches and says Mass in a Church is 'secular'.
    A Convent in rural Quebec is 'regular', the barracks in Quebec City's Citadel is 'secular.'
    A bible is 'regular', a drivers handbook is 'secular' etc etc etc
    Today the language has altered so that 'regular' has been replaced in this contrast with the word 'sacred', which actually has another meaning entirely. But such is the reductive nature of modern thought and language. In order to make room for all the useless fancy, we eliminate basic concepts.
    A good basis to an argument for devolution, and perhaps linguistic teleology?
    Anyway...
    Secularism, in the modern reality, is more or less a political realization of subjectivism or relativism.
    It is sold as 'live and let live', but it is actually more like the Sir Paul McCartney song : Live and let die.
    Much like everything since the 'Enlightenment' (such Hubris) secularism has taken on the aspects of the new religion of 'Me'.

    ....
    What would life be like down a Secular Progressive 'Rabbit hole'?
    In place of objective morality we would have laws based on relative (and ultimately selfish) reasoning: a subjective morality.
    In place of spiritualism we would have hedonism and gluttony promoted by market driven mass media.
    In place of God and faith we would have (really bad) science fiction, courtesy of the unquestionable priests of science - who will of course deny any power greater than their own insight; jealous gods that they are.
    In place of war we would have 'humanitarian' efforts to 'help rebels' and 'change regimes'. This airbrushed warfare would be kept out of sight as much as possible, so as not to be a 'bummer' or 'buzz kill' - a great moral crime in the new subjective, progressive, secular estimation.
    In place of politics and leadership we would have a horrible reality TV show that actually insults the intelligence of household pets who watch it.
    I know it all sounds crazy.
    It is.
    So are the headlines.

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    1. Funny...
      Secular Rabbit Holes seem to be a theme today :P
      Good post, Mike.
      Cheers!

      Delete
    2. It’s the most overtly Christian nation in the West, the United States, that’s the world leader in, and largest exporter of, gluttony and hedonism promoted by the market driven media.

      -KW

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  10. "It’s the most overtly Christian nation in the West, the United States,"
    EH? Not even close!
    Besides? What happened to all the business about the über-secular founders and Tripoli etc?

    '...that’s the world leader in, and largest exporter of, gluttony and hedonism promoted by the market driven media."
    Funny. Weird, I mean....
    When I occasionally venture into to Walmart or one of the other massive Chain stores covered in red, white, and blue ALL (and I mean ALL as in the order of 98%) the goods seem to made in China.
    I don't see any Americans except the guy in the picture. Maybe some tools or some candy or cereal.
    In the Canadian places I find British stuff, Mexican stuff, Indian stuff, MUCH more American stuff, and even (God forbid!) Canadian stuff.... but in the big US chains ALL China, China, China. Even some of the same brands of stuff are made in China in one (US) store, while being made in Mexico or Europe in a local chain.
    Maybe the Chinese have something to do with it too, eh?
    Maybe deals made with them for debt/loans?
    But that's just the goods. There the scratch.
    We were talking about the ITCH.
    The hedonism and gluttony are the appetites FED by the goods.
    In the West - and indeed on this Earth - we have no shortage of these appetites and those willing to satiate them for favour and influence.

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    1. “What happened to all the business about the über-secular founders and Tripoli etc?”

      I was simply making the point that we as a nation are more religious now than we where at our founding.

      Yes I do see secularism as under attack. Early in our nation’s history religions where much more factionalized. People didn’t identify themselves as Christian; they identified themselves as Catholics, Mormons, Lutherans, Baptists, etc. Because no one particular sect could claim dominance over the entire country, most where quite happy to see the government stay as far away from religious matters as possible. It’s only been in the last 50 years that core self identification has become Christian, allowing formation of a political coalition never before possible. Now we see people Like Scalia and Egnor trying to replace the history of this nation with their own version in order to facilitate a remaking of America in their own vision.

      As for your trying to argue that media driven gluttony and hedonism is somehow because china is willing to cheaply build the crap we buy, it’s just absurd. Even the news that we get is driven by the power of the advertising it contains. Our world dominating entertainment industry pumps out one lurid violent piece of shit after another simply because it’s what sells.

      The Republicans are a wholly owned subsidary of the corporations, and Democrats aren’t much better. It is however the Republicans who appeal to gluttony and hedonism directly when they decry having to buy efficient light bulbs or pay a tax on cigarettes or sugary soft drinks. Let Freedom and gluttony ring!

      -KW

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    2. Well, thanks for answering KW.
      I do actually agree with some of what you have written.
      I just find you have a NEED to spin everything against your political opponents, whether they be right wingers, or 'Christians'. Your American partisanship seems to blind you to some obvious parallels between the two 'sides'.

      Now as for solutions, popularism is a much better fix than trying to enthral a nation to some strange new political ideal: Neo-Secularism.
      It's just not going to work. They don't want it, and will resist and eventually overthrow it.

      Delete
    3. CNTD

      On some of your specific points:
      "..themselves as Catholics, Mormons, Lutherans, Baptists, etc. Because no one particular sect could claim dominance over the entire country, most where quite happy to see the government stay as far away from religious matters as possible. It’s only been in the last 50 years that core self identification has become Christian, allowing formation of a political coalition never before possible."
      Excellent. That really is good news :)
      Sectarianism is a curse. It is great to hear American Christians are coming together. Better a hundred years late than never.

      "Now we see people Like Scalia and Egnor trying to replace the history of this nation with their own version ..."
      Revisionism? I don't see how that is a fair charge. In fact, I see it as utterly duplicitous coming from your side of the debate. You are the pot calling the kettle black.

      "...in order to facilitate a remaking of America in their own vision. "
      Sounds like an Obama line. Isn't that what his campaign was? 'Fundamental Change' etc?
      But here lies the problem. BOTH sides of this polarized political system want to change the nature of the US. One into some new 'global' thing, and the other a hard reverse to the Imperial 'Super Power' days. Both are unrealistic.
      One side is marching , with pierced noses, Red flags and screaming against God and tradition.
      The other appears in Tricorn hats connecting violence and revolt with God.
      Both sides seem utterly insane to me.
      In the middle, we have normal, working and professional people like Dr Egnor - and I suspect YOU, KW.
      Painting him or you as an extremist is just silly.
      Isn't it?

      "As for your trying to argue that media driven gluttony and hedonism is somehow because china is willing to cheaply build the crap we buy, it’s just absurd."
      No. You have misunderstood me.
      I am not suggesting China is/was plotting this, I am simply suggesting they are getting very wealthy from it - and consequently have invested their energies and redirected their markets to participate in orgy of materialism.
      This is a truly international mess.

      "Even the news that we get is driven by the power of the advertising it contains. Our world dominating entertainment industry pumps out one lurid violent piece of shit after another simply because it’s what sells."
      Well other than the 'world' wording, I agree. But it is not all the USA - not even CLOSE.
      That is just American Imperial Hubris talking.

      "The Republicans are a wholly owned subsidary of the corporations, and Democrats aren’t much better. "
      Not much better? They are just the other 'team' you're supposed to cheer for... and you do.

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    4. CNTD

      "It is however the Republicans who appeal to gluttony and hedonism directly when they decry having to buy efficient light bulbs..."
      Why do they decry lightbulbs? Is someone FORCING them to buy certain (promoted) brands or something?

      "...or pay a tax on cigarettes or sugary soft drinks. Let Freedom and gluttony ring!"
      Well, I think - and to be fair, they don't like taxation in general. We have various positions on that here too, and generally our (heavily fiscally conservative) voters prefer lower taxes and less hand outs.
      I don't see anything wrong in that position.
      In fact many centralists up this way see the Dems tax and foodstamp policies as inherently racist.
      But then, we have a historical bias towards the GOP in Canada. They were Lincoln's party, and they brought the USA into the 19th Century and made a lasting and permanent PEACE with us.
      The other guys... that's a long harrowing story of refugees, slaves, religious oppression, dispossession, famine etc
      We can be warm or cold for the dems, but it never quite gets hot. The closest I have seen in my lifetime was Obama. Lots of cenral-left types up here were infatuated him when he was running. Not so any more.
      That Honeymoon ended with the snubs and cancelled contracts.

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    5. The vast majority of food stamp recipients are white. The Conservative perception that food stamps are racist is because the racist conservatives can only imagine minorities getting food stamps.

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  11. Michael,

    You have given only part of the history of the Northwest Ordinance. It was originally enacted in 1787 by the Condedrate Congress, which was virtually bankrupt after the Revolutionary War, and desperately needed money to pay loans from either Holland or France.

    The ordinance was to be able to sell land to the Ohio Company. One of its directors, Dr Cutler, was a minister of religion and largely wrote the ordinance. In its initial draft, Article III read 'Institutions for the promotion of religion and morality, schools and the means of education shall forever be encouraged'.

    It was eventually enacted as 'Religion, Morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged'.

    Congress and the Senate reenacted it 2 years later. It wasn't in conflict with the First Amendment. The first part of the article is a statement designed to satisfy Dr Cutler's religious beliefs but not requiring state or government to do anything. It could have been replaced with anything, such as 'Mother's homemade apple pie being necessary to good government and the happiness of mankind,', or left out completely. It's the second part of the article that requires the state and government to do something; to encourage schools and the means of education forever, in the arcane language of the time.

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    1. Michael was only quoting Scalia, and either you know more about this treaty than Scalia, or Scalia is an activist who is intentionally misleading people to further his conservative agenda.

      -KW

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    2. KW,

      Yes, you're right. Michael is only quoting Scalia and presumably thinks that he's right. If he doesn't think he's right, then he's dishonest.

      Of course, Scalia is an activist judge. He mightn't be intentionally misleading people. He might have just not investigated the Northwest Ordinance in sufficient depth.

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