Wednesday, January 11, 2012

My reply to Doug Indeap on the constitutional "separation of church and state"; Part 3

Doug Indeap has replied to my recent post on the Establishment clause and the relationship between church and state.

I should note that I appreciate Doug's detailed comments. My replies are a bit snarky, partly because this is a blog and that's what is done on blogs, and partly because Doug, however thoughtful and polite, is trying to censor me and several hundred million of my fellow Americans. That angers me. I employ sarcasm to make my point. Doug employs police and attorneys to force you to comply with his point.

... your post is largely premised on a fundamental misunderstanding of the nature of constitutional law. The Constitution places certain matters beyond the purview of the normal electoral and legislative processes. Our individual rights, for instance, are not up for majority vote, as you seem to suppose.
I understand the premise of constitutional law as well as you do, Doug. We agree that the Constitution places certain rights beyond the legislative purview (the right to free expression of religion and the right to keep and bear arms, for example). We differ on what the Constitution places beyond the legislative purview.

I believe that the Constitution prohibits the establishment of a national church. In every other manifestation of religion it protects free exercise. It's the plain reading of the Establishment and Free Exercise clauses.

You believe that the Constitution empowers unelected judges to expunge religious expression from civic life, thereby establishing de facto atheism as our civic religion. You believe that the Constitution empowers judges to micromanage vast aspects of our religious life, including what our children are taught in schools and can say and see in schools, and what we citizens can put on our public property and what opinions that we citizens can express via our elected officials.

I see the Establishment clause as prohibiting a national religious establishment. You see the Establishment clause as a license for tenured judges and irreligious litigants to use the power of the state to suppress civic religious expression by American citizens.

I see the First Amendment as a charter for free expression. You see it as a cudgel to suppress religious expression that you hate.
Your post is premised as well on other fundamental misunderstandings. You seem not to appreciate the distinctions between (1) We the People, (2) the government, and (3) individuals.
I understand the distinction.
For instance, you proclaim that "We the People (i.e. the government)" have the right to say we trust in God.
"We the People" and "the government" are not one and the same.
Right. We the People are sovereign, and we elect the government to express our will, with the constraints of the Bill of Rights.
"We the People," acting through a constitutional convention, created "the government" and, in the process, gave it certain powers, refrained from giving it other powers, and expressly limited some of its powers.
Indeed. Could you cite for me the section of the Constitution that empowers federal judges to censor students' prayers at high school graduations? Was that the Establishment clause, the Free Exercise clause, or the Freedom of Speech clause?

"We the People" could amend the Constitution and thereby change the government's powers; the government itself, though, cannot do that.
What hypocrisy, Doug. "Living Constitution" judges change the Constitution regularly, without formally amending it. Every day some batshit federal judge discovers a new right that nobody can seem to find in the Bill of Rights. The right to kill a child in the womb. The right of the government to take private property from citizens to increase municipal tax revenue. The right of atheists not to hear things they don't like. So you're finally admitting that when the Supreme Court or some loon federal judge discovers some "right" that's not in the Constitution and that no one else had noticed for two hundred years, they're acting unconstitutionally? I knew that you and I agreed on some things.
The government must act within the constraints established by "We the People" in the Constitution, including the separation of church and state.
Oh. What was that "separation of church and state" clause in the Constitution, again? Section and article, please. No fair using the KKK initiation oath as a reference.
Your disbelief that the Constitution might bar the government from saying anything that 312,529,476 Americans don't all agree reflects yet another fundamental misunderstanding--because it indeed does just that in certain respects.
Actually, the Constitution doesn't restrict what the government says. It restricts what the government does. "Congress shall make no law...", not "High school valedictorians shall say nothing about..."

The whole point of the government in a representative democracy is to express what the voters have elected it to express. The government represents the people. Elections aren't unanimous, so not everyone will agree with what government says. That's ok. Our elections are decided by majority vote. President Obama won the last presidential election, although I didn't vote for him. President Obama's speeches about the deficit don't violate my freedom of speech. I don't have a heckler's veto over what the president says.

You don't have a heckler's veto either. A high school valedictorian's speech about God doesn't violate your right to free exercise of religion, any more than the President's speech violates my right to freedom of speech. If you don't like the valedictorian's speech, don't listen. Bring your IPod to the ceremony, or hum a tune to yourself. Don't call the police. You've got to learn to suppress your totalitarian instincts.

Speech doesn't violate rights. The use of government force ("Congress shall make no law...") violates rights. You're the one who uses force, Doug.

The Constitution prohibits the Establishment of religion, which is the act of recognizing a national church. It does not prohibit any government official from saying something about religion.

The Constitution prohibits the government from making certain kinds of laws-- from using force. It does not prohibit government officials from saying things, like prayers. In fact, the Constitution is quite emphatic about protecting freedom of speech and free expression of religion.

That is what the constitutional guarantees of individual rights and constitutional limits on government power are all about. The government is constrained to act according to the Constitution REGARDLESS of whether those on one or the other side of an issue amount to millions or dozens or one.
You make my point. The government is constrained to act according to the Constitution. Where in the Constitution are judges empowered to censor civic religious expression? Why do you continuously use the constitutional constraints on government power to invoke government power? Why do you call the police when someone at a school graduation prays? Why do you incessantly use the First Amendment-- the charter of free expression-- to shut people up?
You and I appear to agree on one thing: The courts' explanation that the references to God in the Pledge of Allegiance and the National Motto are more about acknowledging tradition than promoting religion is "bull." As you say, when most Americans recite these references they "mean it."
Damn right.
If the courts acknowledged that and dealt with it forthrightly, they would then have to recognize that such governmental pronouncements are indeed unconstitutional. The courts, though, dodge that conclusion by the "bull" that it is all about tradition and not about religion.
The reason that the courts invoke tradition to insulate some religious expression from censorship is that "separation of church and state" is junk jurisprudence, not any part of Constitutional law, and has created a garbage heap of incoherent and unconstitutional judicial censorship. The transparent purpose of "separation of church and state" is to extinguish civic religious speech-- speech that is explicitly protected in the Free Exercise clause of the First Amendment, which makes no distinction whatsoever between private and civic free expression.

A teacher is no more prohibited by the First Amendment from stating a religious opinion than she is prohibited by the First Amendment from stating a political opinion.

If courts were to enforce your 'mandatory censorship' interpretations of the First Amendment consistently, federal marshals would storm the podium during the State of the Union Address and arrest the President for violating the Constitution when he implores God to bless America. The FBI would arrest the employees at the U.S. Mint for printing prohibited religious speech on our money, and the U.S. Army would dismantle countless national monuments that are slathered with invocations of God. No religion on public property! Klaverns of the godless would go to Arlington Cemetery and tear up those crosses and stars of David on the graves. Ecrasez l'Infame!

Censorship of civic religious expression is not prohibited by the Constitution-- the Constitution guarantees free exercise and makes no distinction between civic and private speech, but, heck, atheist ideologues with a totalitarian itch tell us what the Constitution really means. Who needs to read the document itself?

The reason that judges invoke "tradition" to protect some religious expression is that if they followed your junk logic consistently, they'd be arresting everyone from the President on down, and the whole "separation of church and state" scam would be exposed for the totalitarian project that it is.

You guys just hate Christianity, and you do what you can get away with, and call it law.


  1. Where in the Constitution are judges empowered to censor civic religious expression?

    Article III. Dimwit.

  2. Ah yes. KKK members like James Madison. Who opposed government-paid chaplains in Congress and in the military on First Amendment grounds. Who rejected a proposed census because it involved counting people by profession and the government to count the clergy, in his opinion, would violate the First Amendment.

    Madison, one of the chief architects of the Constitution and the Bill of Rights, also opposed government-issued prayer proclamations. He issued a few during the War of 1812 at the insistence of Congress but later concluded that his actions had been unconstitutional. He vetoed legislation granting federal land to a church and a plan to have a church in Washington care for the poor through a largely symbolic charter. In both cases, he cited the First Amendment.

    Yes. The idea of separation of church and state is clearly the creation of time-travelling KKK members who went back and made Madison and Jefferson advocate for them decades before the organization was founded.

    Egnor, you're a clown. Your arguments concerning the First Amendment would get you flunked in a first year law school class.

  3. Read an article in the newsfeed today that reports the US supreme court has shot down an Anti-Sharia law in Oklahoma. voluntary prayers or benedictions at highschool graduations - but Sharia law as a subset of legislation is fine. Everything from indentured servitude, to finances, tom polygamy, to child brides. to mandatory footbaths...okay.
    Mention Christ? Not okay.
    Real consistent, Uncle Sam.

  4. Crus,

    Nobody has tried to use Sharia law in Oklahoma. The measure to ban the use of Sharia was a silly, symbolic, anti-Muslim gesture. Besides, it would only have been possible to consider Sharia law in a case where no other law applies. And we have laws against indentured servitude, child brides, polygamy, etc.

    So it's completely consistent to keep a meaningless law off the books, especially a law specifically designed to single out a specific religion for legal discrimination.

    The Old Testament is full of polygamy and slavery. Would you support a law banning consideration of the Old Testament in a case where no other legal precedent exists? It's the same thing.

    I know you know this - you're a smart guy - you're just doing a little chest-beating. Ok, we heard you... let's move on.

    1. RickK,
      Your argument is fatuous.
      The Levites are not emigrating to Oklahoma in record numbers. The Levites are not demanding exemption from taxes and interest. The Levites are not asking for their own divorce courts. The Levites do not want the state to pay for prayer rooms and footbaths. The Levites are not modern day proponents of child marriages. The Levites are a clan of the Hebrews. How many modern Jews (Levi) do you know who want Levitical law imposed or introduced? I think the most famous Levite in the USA started a denim pants company with a fellow called Strauss.
      The only way you have to worry about Leviticus is if you are smelting a golden calf to worship at the foot of Mount Sinai...oooh 3500-4000 years back?
      Shariah Law on the other hand is real, modern, and in common practice. I have seen the immolated, decapitated, and pummeled victims of that law FIRST HAND in theatre.
      The next step will be to set up Sharia courts as they have in some of the States near us. Thankfully our province banned Sharia courts (2009?) and our Federal Gov't does not interfere with Provincial decisions in this way....usually.
      RickK, You are comparing apples and neutron bombs. The oranges would be a welcome break.
      I strongly suggest you re visit this issue with a little less anti-Christian bias. This decision is TOTALLY inconsistent and could very well lead to serious blowback.

    2. "I know you know this - you're a smart guy - you're just doing a little chest-beating. Ok, we heard you... let's move on."

      Thanks. I appreciate your recognition, RickK(thud! thud!)
      I will concede your point regarding the laws in place. But this is why I object to a subset.
      Perhaps it could have been worded in a way that did not specifically TARGET Islamic law but still provided the legal framework to pre-empt any attempts at establishing parallel legal systems?
      What do you think of that, RickK?

  5. @KW:

    Thank you for making your hate of Christianity so clear (as if it weren't already).

    You strip every vestige of Christianity from civic life based on fake interpretations of the Constitution, but you have no problem with actual enactment of Sharia law in the US.

  6. Oh look, Jessica Ahlquist won her case, as everyone with even the slightest knowledge about Constitutional law predicted she would.

  7. mregnor,

    While the asides about sharia are just that, I'll add my two cents. The hullabaloo about the supposed threat of sharia overtaking the law of the United States and the several states is SHEER UNFOUNDED HYPE. Those working themselves into a lather about this need to take a deep breath, relax, and then inform themselves–after which they can sigh in relief and affirm, “Nevermind!”

    First, the courts apply federal and state law, not sharia. I can’t image a legislature enacting sharia, can you? I thought not, so no worries on that score.

    Second, in certain instances (which are rare), IF parties to a contract agree that a dispute between them about the contract should be resolved according to sharia, then the court–applying longstanding federal and state law–may implement the parties’ contract in keeping with their expressed intent and resolve their dispute according to sharia UNLESS–again applying longstanding federal and state law–the court finds that doing so in the circumstances of the case would conflict with fundamental rights or principles of federal or state law. The courts have long done the same sort of thing with contracts in which parties agree to resolve their disputes by the laws of one state rather than another, or by Jewish law, or Catholic church law, or . . . you get the picture. Continuing to implement the law of contracts in this manner poses NO RISK that sharia will overrun the nation and somehow govern your next appearance in court. Chill.

    That said, as much of what you say in this post with respect to separation of church and state plows old ground, ignores or, worse, distorts much of what I've said in my comments on earlier posts, and indulges in rhetorical flourish that goes beyond "snarky" and, indeed, dishonestly dodges much of what I've said (and you're smart enough to know when you're doing so), I see little of use coming from further comment and find the prospect of trying further discussion tiresome and pointless. Satisfied that anyone who bothers to read through our past posts and comments will readily "get it," I am happy to leave things as they are. I appreciate your passion for your point of view, even as I regard it baseless, and wish you well.

    1. Doug,

      You state: "I can’t image a legislature enacting sharia, can you?"
      That is a failure of your imagination, and perhaps indicative of an insulated academic life. It could be you simply do not understand the limits of your own expertise. A bit of a monist?
      My position is one born of practical experience.
      I have been to nations, once fairly democratic and progressive that are now governed by these kangaroo courts. Pakistan is but one example. In the 70's-90's Pakistan was an off the path trekking destination, and a favourite for people like myself. Try that now without air support.
      Look, my position is based on eye witness experience. I have SEEN the results of Sharia tribunals. I have seen the victims of these laws. I have also witnessed the slow creep of that culture into the hearts of western civilization. Several states now have ('civil') Sharia courts, no? The UK?
      I am not hysterical, nor am I frightened. I am a soldier who sees a brewing civil conflict on the horizon
      Perhaps you prefer to ignore these issues and leave them for your grandchildren to deal with. Not I.
      People like me feel there is a need to deal with this issue now.
      It is not simply 'anti-Muslim'. No offence to you or any Atheist, but I would MUCH rather have Muslims about than Atheists (and that having fought their fringe) so far as morality and depth of philosophy goes...
      This is not about religion or religious rights to me.
      It is about integration.
      I hope that gives you a better insight into the reality that people like myself live with.

      PS> Love the nic!

    2. crusadeREX,

      Okay. You and I assess the risk of a legislature or electorate in a state enacting sharia quite differently. For at least as far as can reasonably be foreseen (say a couple generations), I see the risk somewhere near that of the proverbial snowball.

      In any event, let's say your assessment is right and there is some possibility of this in the near future. How is is that you think a law such as considered in Colorado would "deal with this issue now"? If a legislature or electorate in the future wants to enact sharia, a law passed today cannot and will not stop them; they will have the power simply to repeal or amend it.

    3. @Doug:

      [For at least as far as can reasonably be foreseen (say a couple generations), I see the risk somewhere near that of the proverbial snowball.]

      Certainly the risk of Sharia law applied broadly is low, although selected application is always a risk.

      And the risk of Christian theocracy arising from a manger scene or a voluntary school prayer is minimal as well, which hasn't stopped you from draconian legal measures to "prevent" it.

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  10. Several states now have ('civil') Sharia courts, no? The UK?

    No, the UK does not have Sharia courts. As usual, you are sadly misinformed.

    1. "As usual, you are sadly misinformed."
      Hmmm. The first link in a google shows this article "Britain has 85 sharia courts: The astonishing spread of the Islamic justice behind closed doors".
      That was 2009. Apparently and according to the Sharia Council of The United Kingdom there are more to come.
      So who is misinformed? Myself, the media, Westminster, and the Sharia Council?
      Or you?

  11. Egnor: "I agree with you. Isn't it bizarre that atheists will go to federal court to remove a plastic baby Jesus from a public lawn, but they support actual Sharia law-- law explicitly based on a religion-- in the US.

    Atheists just hate Christianity."

    Wait. I'm an atheist, and i support Sharia law?

    When did i ever say that? Why am i getting lumped into some form of generalization and unfounded bias?

    Oh. Right, that's BIGOTRY.

    1. Mulder,
      "Wait. I'm an atheist, and i support Sharia law?"
      I, for one, am glad you do not.

  12. Many of the new atheist set seem solely interested in attacking Christianity. Men like Hitchens being the exception (equal opportunity attacker!)
    In truth, I think it is cowardice, Mike.
    We see the same in politics.
    I think they KNOW how the Islamic world would respond, and so they 'slap the cheek that turns away'.
    That said, some of the old school apathetics seem quite aware of their privileged status in the west and are content to be quietly smug in their omnipotence.

  13. I did not know the Oklahomans were 'douchebags'.
    I thought they were American citizens.... weird.

  14. So who is misinformed? Myself, the media, Westminster, and the Sharia Council?

    Your link doesn't go to an article that concerns Sharia law at all. Did you really think no one would click on it? Or are you just too stubbornly stupid to admit you got this wrong? There is no Sharia law in the UK. People can agree to have their cases arbitrated under Sharia law, but that's an entirely different thing.

  15. "We establish no religion in this country. We command no worship. We mandate no belief, nor will we ever. Church and state are and must remain separate." -Ronald Reagan, 1984

    That Ronald Reagan sure was an anti-Christian Klansman, wasn't he?

  16. Could someone please advise me on how I may contact Doug Indeap. Thank You.