And this is the real point. The times are changing and the Constitution is a living document that changes with the times. Congress may not have directly passed any laws that are now being challenged, but the government did set up courthouses and then people like Roy Moore put religious monuments on the grounds of said courthouses. Congress did not pass a law placing the monument on the grounds, but a government official DID place it there and that has been interpreted as a step toward establishing a religion. For quite some time, this country was almost exclusively Christian and as such, many of the things that are now being found unconstitutional were just fine. As we have seen a more varied religious population, these things have become bothersome to people of other (or no) religion and as such, are unacceptable. You don't have to directly pass a law establishing a religion for there to be an environment where one religion is promoted above others. AFAIC, if you want a religious monument put up, there are plenty of places where this is acceptable including church grounds (there is no shortage of churches in this country) and private property. Why is it necessary to have these religious monuments or rites on government or public property?
andymoon- I cannot disagree more about the Constitution and this hits the fundemental issue. I believe this will become the most important issue this nation has ever faced. The Constitution guarantees certain unalienable rights to all of the citizens of this country. The design and wording of our Constitution has set us apart among all other nations over the past 220 yrs. as far as protecting a peoples individual liberties. It will be the changing of the Constitution that will destroy these liberties. Religion is not the only thing at stake. Freedom to assemble Freedom of speach Freedom to bear arms Freedom to own property Freedom to petition the government Freedom of the press Freedom to the sovereignty of individual States of the Union. There is much at stake here. We have slid so far down the road 'changing' the Constitution that now the quasi-dictator in the White House (choose your flavor) can send us to war by presidential decree, police-state action, without the Congressional Declaration set forth in our Constitution. We have so many executive orders going out of the Executive Branch that we no longer have much check and balance. No president of either party should yield so much unconstitutional authority. You have hit the nail on the head. We are changing the Constitution and we do it at the peril of this nation. We are using things like the Patriot Acts, Homeland Security to strip the rights of many individuals based solely on their ethnicity (and that will change and expand depending on who is in the seat of political party- the precedent is being set) We are unconstitutionally borrowing money at a staggering rate, the kind of rate that has destroyed every other nation before who has trod downthe path of exploding debt. We are in a mess-- And there is that one brilliant document that originally gave us a guiding set of principles to keep us prosperous, free and strong. I do not think a living changing Constitution serves us but will eventually enslave us. Let the clock tick- time will tell and one of us will be proven to have forsight. I cannot predict the future but I try to learn from the past.
Rhester; You've raised a lot of issues and I'll try to address them. The problem with that view is that its a pre-14th Ammendment view that extended the protections, and restrictions, of the Bill of Rights to the States. Under your view then the States would be free to ignore all of the Constitutional protections For someone so concerned about tyranny you're advocating a position that would allow for tyranny on the local level. To me this seems to be the key to your complaint. How has your free practice of religion been hindered in any way? I practice a religion myself and none of the court rulings keeping religious symbols out of public buildings or preventing mandated school prayer have restricted my religious practice in anyway. If anything it makes me easier to practice my religion as I don't have to deal with religious symbols and practices of other faiths constantly confronting me. As individuals yes but as government no. That clearly is a violation of the establishment clause. Again as individuals in their offices yes they are fine to identify their own religion as much as having a Rocket's poster is fine to identify their sports allegiance. The difference is though when those symbols are associated with symbols representing the power of the state. That implies a bias towards a sectarian view which the First Ammendment is supposed to prevent. So for a judge to display the Ten Commandments in a courtroom gives a bias as much as a judge hanging a Rockets poster there. Both publically state that the power and judgement of the court is already pre-biased towards either Judeo-Christians or Rockets fans. A judge sitting in court technically gives up his/her individuality to instead personify the power of the state. Do you want your judges to be openly displaying personal biases while in court? Frankly I think this is a paranoia that is primarily only shared by Christians. Most practitioners of other religious aren't feeling oppressed by state sanctioned secularism. This goes again to the fact that Christianity has gotten a break for most of US history and now even though it still is the majority religion is getting treated like the other religions. This also goes to a misunderstanding about the wall of separation that Jefferson spoke of. The fear at the time among many was that a majority of Americans followed one sect of Christianity and would then use the power of the government to enforce that sect and also suppress other sects of Christianity. For those from less numerous Christian sects realized it was in their interest to have a wall even if that limited their own ability to express religion through the government because it would also keep out a majority expression. 200 years ago their weren't many non-Christian US citizens but now we live with a diversity of religions. Those of us who aren't Christians but are religious are fine with restricting display of religious symbols on government property and mandating religious practices because we know that if so we would be overwhelmed by the majority Christians. Exactly which is why religious expression should be kept out of government so the majority doesn't overwhelm the minority. Here you're betraying exactly what I've been saying. You believe Christianity is under attack so you're saying we need to allow expression of all religion. First off religions can be expressed privately nothing I've seen bans that. As for saying all religious expression from reading the rest of your posts I think its clear you've looking to advance Christianity knowing that in most localities Christians are the majority and you want to allow local government to express the local majority. While yes we can talk about universal values but those arguing for displaying of Christian symbols are going much farther. The first four commandments of the Ten Commandments are specific only to Judeo-Christian religions. How does "Though shalt have no other God but me", "Make no graven images" and "Do not take the Lords name in Vain" express universal values to polytheistic religions that use icons? That's not respecting religious freedom that's asking for government to sanction one religious view over the other. I agree wholly too but the problem that I see is you're trying to pick and choose which portions of the Constitution you want and narrowly interpretting it here and there to make an argument while ignoring it as a whole document. You're reading the First while ignoring the 14th. You're broadly interpretting the second clause religion clause in the First while narrowly reading the first clause. You're engaging in as much of stretching the Constitution as those you criticize. I think what it all comes down to is your perception that your religion is being supressed. How is not having the Ten Commandments displayed on government property suppressing your religion? How is not having mandated prayer in school suppressing your religion? To my knowledge you can still display the Ten Commandments as much as you want on private property and public property on your person. You can pray as much as you want even in school. There is nothing that I see preventing the practice of your religion just that government can't support it.
How does keeping Christians from establishing school prayer or erecting Christian monuments on public property "destroy" any liberties? Christians are still free to worship, attend church, put up any religious display they want on their own property, pray to themselves virtually anywhere, or otherwise express their religion. They just aren't allowed to use the government or any agency or organization controlled by the government to do those things. I also don't see that these freedoms have been infringed all that much. I am right there with you on this one, however. I think that on many, many issues, we have taken power from the states and given it to the Federal government, to our detriment. Again, I agree with you here. I think that if we are to go to war, we should do it the way the Constitution details, by declaration by Congress, not by decree of the POTUS. Again, totally agreed. This is where we disagree. The Constitution NEEDS to change sometimes (slavery) or else our nation will cease to exist as we know it today. This isn't through changes to the Constitution, it is through laws that may or may not be constitutional (challenges to the PA haven't made it to the USSC yet), but definitely strip rights and infringe on others. Perhaps I don't remember the constitutional ban on borrowing. That doesn't mean I don't agree with you on this issue because I do. Our debt will eventually have massive repercussions and we should really deal with it now rather than later. Without a living, changing Constitution, this country never would have made it through slavery. The ability to change and reinterpret the Constitution is part of what will keep this country strong and viable. It seems to me that most of the frustration you have is due to politicians doing things they shouldn't, not judges interpreting the Constitution.
Correct I like the pre-14th view. That's a whole different bee hive (and I am not Libertarian) The Squalid 14th Amendment by Gene Healy SEC. 1. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. SEC. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. – Fourteenth Amendment to the US Constitution Political decentralization and individual liberty: the two are intertwined, but the former doesn't guarantee the latter. As Americans discover every day, the government that's closest to you is often in the best position to put the screws to you. How should libertarian political theory deal with the problem of oppression by local sovereigns? In the American context, this question translates to: What should libertarians think of the Fourteenth Amendment? It's a question without an easy answer. Classical liberals of good faith have found themselves on either side of the issue. Thus, Lord Acton, following the Confederacy's defeat, wrote to Robert E. Lee: "I saw in States' Rights the only availing check upon the absolutism of the sovereign will.... Therefore I deemed that you were fighting the battles of our liberty, our progress, and our civilization." But by the late 20th century, libertarians have come full circle on the question of states' rights and the Fourteenth Amendment. Today, the libertarian orthodoxy holds that the Fourteenth Amendment perfected the Framers' design, fulfilling the promise of the Declaration of Independence. Further, the promoters of the new orthodoxy urge that the amendment be given robust application against the states, in order to secure our natural rights to life, liberty and property. On this question, no one is more orthodox than Roger Pilon, Director of the Cato Institute's Center for Constitutional Studies. In him, Cato has an able advocate, one who provides a valuable counterweight to a New Right jurisprudence that overvalues majoritarianism and views the judicial branch as the gravest threat to our liberties. Unfortunately, Pilon's case for the Fourteenth Amendment is deeply flawed. His case for the political legitimacy of the amendment requires him to ignore the circumstances of its inception; and his case for the amendment's efficacy as a means of securing individual liberty depends on a Panglossian view of judges and federal supremacy. The defects in Pilon's arguments should prompt libertarians to reexamine the new orthodoxy on the Fourteenth Amendment. Ratification "at the Point of the Bayonet" Throughout Roger Pilon's published work, the watchword is "consent." We come out of the state of nature, so the myth runs, the better to secure our natural rights. The government we institute derives its just powers from the consent of the governed. "That, and only that, is the source of their legitimacy," Pilon tells us in Economic Liberties and the Judiciary. Though Pilon concedes that unanimous consent is a fiction, he suggests that the Framers did a tolerably good job in requiring broad consent for the adoption of our Constitution and in the procedures for its amendment. In a recent Cato Institute Policy Analysis paper, "Reviving the Privileges or Immunities Clause," Pilon and coauthor Kimberly C. Shankman write: "the supermajoritarian consent that was required for constitutional ratification and amendment...served, as far as practically possible, to legitimately institute government, authorize its powers, and change those powers." Quite properly, given his emphasis on consent and legitimacy, Pilon has repeatedly excoriated the political branches for arrogating to themselves powers that the people never delegated through Article V's amendment process. In their Cato paper, Pilon and Shankman apply similar scorn to the judicial branch for ignoring the Fourteenth Amendment. They recount the story of the 1873 Slaughterhouse Cases, which "effectively eviscerated" that amendment's Privileges or Immunities Clause. The authors spare no venom in decrying "judicial resistance to popular will," which thwarted "the course that...the American people had meant the Court to follow." But somewhere along the way, the true history of the Fourteenth Amendment's adoption has disappeared down a memory hole. When one reviews that history, it becomes clear why Pilon and Shankman prefer to discuss the amendment in the abstract, antiseptic terms of social contract theory. An "immaculate conception" account of ratification suits their argument better: the real story's a little too dirty for the kids. We return to 1865. As the legally reconstituted Southern states were busy ratifying the anti-slavery Thirteenth Amendment, the Republican-dominated Congress refused to seat Southern representatives and Senators. This allowed the remaining, rump Congress to propose the Fourteenth Amendment, consistent with Article V's requirement of a 2/3 majority for sending a proposed amendment to the states. Never mind that Congress also clearly violated that Article's provision that "no State, without its Consent, shall be deprived of its equal suffrage in the Senate." Though the Northern states ratified the Fourteenth Amendment, it was decisively rejected by the Southern and border states, failing to secure the 3/4 of the states necessary for ratification under Article V. The Radical Republicans responded with the Reconstruction Act of 1867, which virtually expelled the Southern states from the Union and placed them under martial law. To end military rule, the Southern states were required to ratify the Fourteenth Amendment. As one Republican described the situation: "the people of the South have rejected the constitutional amendment and therefore we will march upon them and force them to adopt it at the point of the bayonet." President Andrew Johnson saw the Reconstruction Act as "absolute despotism," a "bill of attainder against 9,000,000 people." In his veto message, he stated that "such a power ha[d] not been wielded by any Monarch in England for more than five hundred years." Sounding for all the world like Roger Pilon, Johnson asked, "Have we the power to establish and carry into execution a measure like this?" and answered, "Certainly not, if we derive our authority from the Constitution and if we are bound by the limitations which it imposes." The rump Republican Congress overrode Johnson's veto and enacted statutes that shrank both the Supreme Court's appellate jurisdiction and the Court itself – just in case the judicial branch got any funny ideas of its own about constitutionalism. Jackboot on its neck, the South ratified, but not before New Jersey and Ohio, aghast at Republican tyranny, rescinded their previous ratifications of the mendment. Even with the fictional consent of the Southern states, the republicans needed New Jersey and Ohio to put the amendment over the top. No matter; by joint resolution, Congress declared the amendment valid. Thus it – you'll excuse the phrasing-- "passed into law." The squalid history of the Fourteenth Amendment poses serious problems for Roger Pilon. Pilon's critique of the New Deal has always included withering scorn for FDR's extraconstitutional thuggery, in the form of the infamous Court-packing scheme. As Pilon tells the story, FDR muscled the Court into approving radical constitutional changes that could be enacted only by means of Article V's amendment process. The people never delegated to the federal government the powers it took for itself during the New Deal. But neither did they delegate to the federal goverment the powers it seized in 1868. Any New Deal aficionado who knows his history is entitled to wonder about Pilon's selective indignation: does he invoke the principles of consent and legitimacy only against constitutional changes he dislikes? The Fourteenth Amendment in Theory and Practice Ancient history, you say. The Fourteenth Amendment is in everybody's Pocket Constitution, and it's not going anywhere. Fair enough, but the above account shows that the amendment cannot be justified with a bedtime story about Lockean first principles. If libertarians are to embrace the Fourteenth Amendment, they'll have to find pragmatic reasons to do so. The argument must be that the amendment has been, and will continue to be, an effective weapon in the struggle for individual liberty. But even here, the case is not nearly as strong as Roger Pilon believes it to be. What is strong is Pilon's account of the original understanding of the Fourteenth Amendment, and particularly the amendment's "Privileges or Immunities" clause. As he recounts in the Cato Handbook for the 106th Congress and elsewhere, the Civil Rights Act of 1866, which the amendment was designed to constitutionalize, gives us a good idea of the kind of privileges and immunities the drafters wanted to secure. The rights that act protected from state infringement were "basic common law rights," such as "the right to make and enforce contracts...to purchase, lease, sell, hold, and convey real personal property." As Pilon has it, the clause protects a substantive core of natural rights from state infringement. Thus, Lochner v. New York, the much-maligned 1905 case in which the Supreme Court struck down a New York statute setting maximum hours for bakery workers, was closer to the original understanding of the Fourteenth Amendment than much that has come since. [Though with the Privileges or Immunities Clause 'effectively eviscerated, the Lochner Court was forced to rest its decision on the amendment's Due Process Clause, which, as Pilon notes, provided a weaker foundation.] Properly understood, then, the amendment doesn't give judges "power"; rather, it enlarges the sphere of the judicial "veto," allowing judges to strike down state and local laws that infringe on natural rights. The Slaughterhouse majority warned that a broad interpretation of the amendment would make the judiciary "a perpetual censor upon all legislation of the States." To which a good libertarian can answer, "So what?" One could riffle through most state and municipal codes, tearing out hundreds of pages at random, and leave the law in better shape than one found it. As Pilon argues in a 1993 Notre Dame Law Review article, it is the Court's job to be a "perpetual censor," to ensure that legislative enactments "both proceed from the authority granted them and are consistent with rights restraining them." The Fourteenth Amendment merely provides "an additional layer of protection" for rights. Threats from the Least Dangerous Branch But in practice, the Fourteenth Amendment has often operated as a grant of legislative and executive power to judges. And that power has been used to violate the very rights it was meant to secure. This is nowhere clearer than in the line of cases thought to represent the Fourteenth Amendment's finest hour: Brown v. Board of Education and its progeny. Brown has iconic status on the Left and much of the Right, because many commentators see it as ending de jure segregation and furthering the first Justice Harlan's noble ideal of a "color-blind" Constitution. But this is only part of Brown's story. Equality before the law shifted effortlessly into forced equality of outcome in the space of a few short years. State resistance, massive or otherwise, was useless. In North Carolina Board of Education v. Swann, the Court struck down a state statute providing that no student would be compelled to attend any school for the purpose of improving racial balance in the schools. In Washington v. Seattle School District, the Court did the same with a statewide voter initiative preventing mandatory busing for purposes of integration. In U.S. v. Yonkers, a federal judge held the Yonkers city government in contempt, ordering it to integrate its schools by building scattersite public housing in predominantly white areas. This line of cases reached its coercive nadir in Missouri v. Jenkins, when the Supreme Court held that, to further integration, a federal judge could order a local government to increase property taxes, even though the increase was barred by the state constitution. "Well, it serves you right for setting up government schools in the first place," say we libertarians. But wait. Faced with a desegregation order in the early '60s, Prince Edward County, Virginia, refused to assess school taxes and instead shut down its public education system. In 1964's Griffin v. County School Board, the Court ordered Prince Edward County to levy the taxes and reopen its schools. In 1996, when the Court ended male-only admissions at the Virginia Military Institute, one of the obstacles to VMI's privatization was a possible Griffin-based challenge from the Justice Department. Thus, in the wake of Brown, federal courts enforcing the Fourteenth Amendment have seized vast coercive powers, state resistance to taxation and social engineering notwithstanding. To what benefit? None, actually. As the editors of a leading--and, it should go without saying, leftist--constitutional law text admit, there is "no proof . . . that [integration]has aided blacks in any demonstrable fashion." (Stone, Seidman, Sunstein, and Tushnet; Constitutional Law; 2d Ed. Little, Brown, and Co.; 1991 pps 530-31) It's true that in recent years, the federal courts have cooled somewhat to desegregation lawsuits. It's also true that, thanks to Missouri v. Jenkins, we're no longer protected from taxation by unelected, life- tenured federal judges. The precedent remains on the books, waiting for the next egalitarian jihad. In its 1868 Resolution deratifying the Fourteenth Amendment, New Jersey charged that the amendment would work a radical "enlarge[ment] of the judicial power." In fact, New Jersey suspected that the amendment itself was "made vague for the purpose of facilitating encroachment on the lives, liberties, and property of the people." Maybe the Garden State was on to something. If You Liked the Commerce Power. . . In addition to the de facto grant of legislative and executive power to judges, the Fourteenth Amendment includes a de jure grant of power to Congress. Section Five of the amendment reads: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Roger Pilon argues that Congress should routinely invoke Section Five to strike down state violations of individual rights. In the Cato Handbook for the 105th Congress, he declares that Congress has "often failed in its responsibility under the Fourteenth Amendment to police the states. Here is an area where federal regulation has been, if anything, too restrained." It's unlikely that Pilon fully recognizes the implications of this position. In the passage immediately preceding the above, he rails against burgeoning federalization of crimes, which has taken place because of willful misinterpretation of Congress's authority to regulate interstate commerce. But if Congress can step in under the Fourteenth Amendment to secure basic individual rights when states "fail to secure them against private violations," as Pilon assures us Congress can, then Pilon has opened the door to a vast federal police power. Say goodbye to the tentative restriction of federal authority provided when the Court struck down the Gun Free School Zones Act in U.S. v. Lopez. Does carjacking violate our rights to liberty and property? There's your authority for the Federal Carjacking Statute. Do outlier states provide women with insufficient protection against domestic abuse? Quite possibly, so make way for the Violence against Women Act. If you like the "substantial effects" test for invocation of the Commerce Power, then wait until you see what Congress can do with matters that "substantially affect" liberty. [In fact, the Violence Against Women Act VAWA) is based in part on just such a theory of Congress's power under Section 5. Several district courts have upheld the statute. But on March 5, the Fourth Circuit Court of Appeals emphatically rejected VAWA, and with it the theory that Congress can use the Fourteenth Amendment to federalize crimes when, as Roger Pilon puts it, "State measures prove inadequate." See Brzonkala v. Virginia Polytechnic 1999 WL 111891 pps 40-55.] In the midst of the recent furor over black church burnings, Congress passed the Church Arson Prevention Act. In his Cato Handbook chapter and a 1996 Washington Post op-ed, Pilon chides Congress for relying on the Commerce Clause in enacting the anti-arson statute. Instead, he tells us, Congress should have invoked its authority under Section Five of the Fourteenth Amendment. "If the facts had warranted it," he writes, Congress would have had "ample authority" under Section Five to pass the Church Arson Prevention Act. Reading between the lines, I surmise that he doubts that the facts warranted it. Indeed, there's every reason to believe that they didn't, as research by Michael Fumento and others later suggested. But we operate with a real-world Congress, susceptible to political pressure, and a real-world judiciary reluctant to make what it sees as political judgments. If the only check against federalization of crime is to be found in the judiciary's willingness to overturn congressional findings of fact, then that's no check at all. To go before Congress and the readership of the Washington Post and offer up an underused federal power is to stride onto enemy turf and proclaim, "Forget about the pipe you've been beating us with. Try this chain." The logic of public choice applies to Section Five as well as it does to any other enumerated power. The constituency for commonlaw liberties is broad and diffuse; the constitutuencies for federal coercion are discrete and concentrated. They'll win the fight. They're already winning. Consider what Congress actually does with Section Five of the Fourteenth Amendment. That provision is most often invoked in the service of modern notions of equality, providing private rights of action against discrimination. Among the statutes upheld under Section Five are the speech-restrictive Freedom of Access to (Abortion) Clinic Entrances Act, the Americans with Disabilities Act, the sex discrimination provisions of Title IX of the Civil Rights Act, and the Age Discrimination in Employment Act. With regard to the latter three, Section Five allows Congress to abrogate state governments' Eleventh Amendment immunity from suit in federal courts. Congress and the courts have used Section Five to allow extortionate lawsuits against state governments, agencies, and schools. It's true that Congress generally does not invoke Section Five when it regulates private individuals. This is the case for two reasons: 1) Congress already has the power to do almost anything it wants under current Commerce Clause jurisprudence; and 2) current Section Five jurisprudence limits Congress to regulating "state action." But this can change. The "state action" doctrine has proved a rather porous barrier to Congress's power to regulate private actors. The first Justice Harlan, whom Pilon and Shankman seem to view as some kind of Lockean fellow traveller, opposed the doctrine as an unreasonable limitation on Congress's power to regulate businesspeople; so too did six members of the Warren Court at one point in the 1960s. Though the state action doctrine has remained nominally intact, the Court has found "state action" in situations such as enforcement of private, racially restrictive covenants; enforcement of racially neutral trespass statutes against lunch counter sit-ins; and racial discrimination by private businessmen leasing property from the state. The doctrine is eminently capable of giving way to a general regulatory power. If the Supreme Court gets serious about restraining congressional abuses of the Commerce Power, look for Congress to use Section Five to reenact and extend modern antidiscrimination laws. And look for the Court to cave. Pilon recognizes that the Fourteenth Amendment carries with it a potential for abuse; but his solution is profoundly unsatisfying. In recent Congressional testimony, he stated that "the Fourteenth Amendment has itself been misused, both by Congress and by the courts. But that is no reason to ignore it. Rather, it is a reason to correct the misuses." According to Pilon, the answer to bad judging is better judges and better judging. To get where we want to go, we need to appoint judges who understand the Constitution and "the classical theory of rights" that stands behind it. Judges need to get in touch with the "Higher Law background" of American constitutionalism. Well, I've spent the past three years in law school surrounded by future federal judges. Here a passion for levelling infects the classroom discussion, and the idea of natural rights has the intellectual status of phrenology and creation science. Students see in the Fourteenth Amendment an irresistible engine for reshaping society along egalitarian lines. They do not care what the amendment actually means. In this context, Pilon's solution sounds positively Lennonist: "Imagine all the judges/Applyin' Higher Law..." Dreams and Nightmares I may say that Roger Pilon's a dreamer, but I don't have a more practical answer. Nor have I been entirely fair to the Fourteenth Amendment. In the areas of free speech and criminal procedure, for example, the amendment has been the source of some of the Court's proudest moments, some of the greatest vindications of liberty in American constitutional law. Given a regime of federal supremacy, perhaps the Fourteenth Amendment can help us check local tyranny in some areas. But libertarians, of all people, should recognize that a Congress and a Court that are powerful enough to give us everything we want are powerful enough to take it all away. Individual liberty competes with the mirage of social justice in the hearts and minds of the governing elite. The Fourteenth Amendment can further the forcible enactment of either vision. Libertarians are reluctant to embrace "states' rights," an admittedly unfortunate term. But the independence of the states once served as a check on coercive social experimentation. From this perspective, Justice Brandeis's rationale for federalism, that individual states can serve as "laboratories of democracy," gets it precisely backwards. The point of decentralization is that the smaller the laboratory, the easier it is for us rats to escape the Skinner Box. That battle was perhaps lost after Appomatox, in what Roger Pilon grotesquely mischaracterizes as a "war to secure liberty." I don't expect Pilon to consign himself to irrelevancy by advocating the dissolution of the Union. But I would like him to temper his fervor for the Fourteenth Amendment with a recognition of the difficulties posed by federal supremacy. And I'd like libertarian followers of the new orthodoxy to consider whether Pilon's idea, that Congress and the Court can serve as guarantors of our liberty, amounts to the fond hope that the wolf at our door can be housebroken. Our common goal is the night-watchman state. If ever again we approach that ideal, will it be with the help of a federal government that is the benevolent master of all it surveys? Or will we get there by way of radical decentralization with little or no federal oversight? These may be loaded questions, but they ought at least to be seriously considered. It's my view that if we can ever rid ourselves of federal supremacy--of what Lord Acton called "the absolutism of the sovereign will"--losing the Fourteenth Amendment will be no sacrifice at all. If the dream of independent states seems absurdly unrealistic, then consider a nightmare. Consider Professor Catharine A. MacKinnon's Fourteenth Amendment. In her book Only Words, MacKinnon tells us that the First and the Fourteenth Amendments conflict. She writes that "the Reconstruction Amendments...move[d] the ground under expressive freedom, setting new limits and mandating new extensions, perhaps even demanding reconstruction of the speech right itself." When this is properly understood, the state will be able to censor the speech of "dominant" classes, and forcibly reconstruct society to ensure "equal access to speech." Indeed, "the state will have as great a role in providing relief from injury to equality through speech and in giving equal access to speech as it now has in disciplining its power to intervene in that speech that manages to get itself expressed." Those who consider MacKinnon's words the irrelevant musings of a tenured law professor are unfamiliar with her successes in the area of sexual harassment law, and unfamiliar with the cachet her ideas have in the legal academy. Given federal supremacy and the vast powers the Fourteenth Amendment confers on Congress and the courts, it matters little whether Roger Pilon is right about the amendment's original meaning. In the fight between Pilon and MacKinnon, on the battleground of American legal culture, I root for Pilon. But as a betting man, I'd place my chips on MacKinnon. Gene Healy is a recent graduate of the University of Chicago Law School. This article was first published in the August 1999 issue of Liberty Magazine.
Rhester; I will agree with you that the history of the 14th Ammendment is checkered, but what institution of US Government hasn't been. The question I would put to you and the author of that piece is do you think the country without the 14th would've been better? My own feeling is no. Clearly we can all agree that the ideal of this country is protecting individual liberty and for all of the abuse of the 14th Ammendment overall it has still furthered the cause of individual liberty by actually giving teeth to the 13th Ammendment to end Slavery and extend the protections of the Bill of Rights to the States. You've made a big deal about the protections in the First Ammendment but you must realize that those protections are worthless without the 14th since in general local government has a much greater affect on your life than the Fed.. Without the 14th if your state constitution didn't duplicate the First Ammendment protections your local city council could pass a law banning freedom of the press, assembly and free expression of religion. As a Christian if you lived in a community that was dominated by Jews they could pass a law outlawing Christianity. Overally I think its far better that we have the 14th than do without otherwise we're leaving one big loophole for tyranny.
The Supreme court is suppose to have 1/3 of all power in the government. if anything since 9-11 the executive branch has run unchecked. the supreme court needs to rule and on many issues of the patriot act and bring the executive branch back under control. and back to the original topic, democrates have been much easyer with bush appointies than than the republicans were with clintons. fact. so to go playing the religion card yet again is stupid and childish.
Sishir Chang agreed. In many ways I don't disagree with the premises. It's the applications that I find scary. I think the police are these upstanding protectors of the citizens in most cases(bad premise?), but I can't forget the time I saw two officers beat a man almost to death while he was drunk. Tyranny usually takes people by surprise. No one campaigns for it. I don't believe for a minute that any amendment of the Constitution protects us from anything without those who define it, execute it and govern by it also protecting us. Typically since I am a religious person I assume the Constitution is somewhere out there guaranteeing me that I will never suffer just because I am religious (you probably are thinking heh, the minoritiy group usually bears the suffering). Nor will my children live in a world that is prejudiced towards them for reasons of faith. (I realize we are a diverse secular nation, the shoe is on the other foot. We Christians deserve it (I mean that sincerely) I don't feel I should have special treatment because I am Christian nor do I believe that the First Amendment was used to protect other religions. But I sincerely have always personally believed it should have. As I have sudied the Bible I believe that Christians were to demostrate God's love, truth and character. I can certainly understand complaints against Christians. I don't believe in all this Religious Right Movement and Christians need to take over govt. junk (Christians make a bad enough name for themselves without anyone's help.). I do believe in freedom of religion. I would believe in it if it wasn't in the Constitution because it is in the Bible. But I hold on. I hold on to something that slips through my fingers and I will not pass on to my children. Even if it was just my own experience. Somehow, when I was told at Dow Chemical that I could no longer have religious expressions at work. I could not talk to others about my faith, and I must not offend others by bringing a Bible to work, I got the impression from them that they had no choice- the govt. made them do it. Sure seems like a little thing. That was back in 1997. My point is not that I think I am about to be persecuted. My point is things have changed in America. Like I said before, I went to first grade when we opened class with the Lord's Prayer. I know we are diverse now and tolerant and we must separate God and government. But somewhere from 'free exercise of religion' to don't bring a Bible to work something changed. First grade was nice. So as a religious person who has seen other faiths feel uncomfortable in 'Christian America' now I need to get used to being uncomfortable. I am good with that. Comfort or being in the majority or being in control is not the Christian goal. But like the people who tell me about the Great Depression and then they keep two months supply of food in the pantry and I think they are nuts???? Let me remember the days I thought the Constitution protected the Christmas play we held at school, the Bible on my teacher's desk and the Ten Commandments posted at city hall. Things change. Let me keep thinking that the Constitution was the reason the America I grew up in was that way and let me keep thinking the Constitution hasn't changed. My own premise is faulty. But I can't think of any other reason to feel secure. I know you can promise me that nothing bad is ever going to happen to religious people, at least not like what tyranny's have done throughout history. Not that I don't trust politicians, judges and all the other good guys in black suits. Just that I like remembering why 'In God We Trust' is on all that borrowed money. In other words we are debating two world views that we could never reconcile. Let me dream on, my generation has had its heyday. Pray for my kids, they are religious also. And I don't mind feeling threatened. Many other religions have felt that way in America because of Christians being the majority. I also believe in the Love of God shown in the life, death and resurrection of Jesus Christ. That love has taught me that with all our differneces and belief systems I cannot force anything on anyone else and it is wrong to try- I would rather give drink to the thirsty, both literally and spiritually speaking. My debate here has been my way of taking a break, not intended to change your mind. I respect your opinion.
My point is things have changed in America. Like I said before, I went to first grade when we opened class with the Lord's Prayer. and blacks sat in the back of the bus, women were barefoot and pregnant in the kitchen, Jap Americans were in concentration camps, native Americans were being treated like cattle, ... Times change. Some things are meant to be left in the past.
Lord's Prayer in class Black's segregated Women barefoot and pregnant Japanese in concentration camps Abuse of Native Americans Five evils we have exterminated. That helps me feel better about being religious. I'm glad racism has been eliminated like I am glad everyone will be tolerant of my personal faith. Why not just say, religion has to go?
People when they put on their nostalgia goggles filter out the bad and see only the good. That was my point. I really do not care whether or not the Lord's Prayer is said in public schools to start the day. I am also not concerned about the God reference in the Pledge of Allegiance. The presense or absense of these minimal religious references I suspect has no impact on student's grades or behavior (or sexual orientation ftm). But I can see where other people would care and how the US constitution forces the issue here. For the stoutly religious, removing these religious references should not have much of an impact. No one will stop them from saying their prayers silently in school or reading their bibles during their break time at school. For the people/students on the religious fence, one might argue that school sponsered prayer may be enough of a nudge to get them on the "right" side of the fence. Others could counter that this is not the job of the public school system. I have to concur with the latter. Thus, I do not really care whether the Lord Prayer is said in public school or not, but I also do not think that public schools should enter into the religious business, even minimally. I am of two minds. I will let the consitution be the tie breaker
Religion itself does not have to "go," but expressions of religion by government and public institutions does. Religion is a wondrous and beautiful thing for a great many people and nobody in their right mind is advocating for religion to be abolished. Religious people can still pray to themselves anytime they feel the need, wear crosses anywhere, go to church every day of the week, and express their spirituality in a vast myriad of ways. However, when public institutions do things to "express" religion, it has the net effect of pushing that religion on everyone, including people who would rather be free from those expressions. These people are certainly in the minority, but part of the reason we have the Bill of Rights is to keep the majority from trampling the rights of the minority.
No Worries - I really personally appreciate your answer. And I totally agree. I don't think it is a school's responsibility to do what God asked the parents to do. A school might help, but that is a parent's responsibility. I agree again, that it is not the schools 'job' if we see it as something mandatory for all. And I am not sure saying the Lord's Prayer even in church gets anyone to the 'right' side. I am not trying to weigh in any benefits. My own niche in this is that religious freedom should be protected as a liberty to the extent that it is not prohibited where it's expression is not an attack on another or endangering the safety of others. Not removed because someone is 'offended'. Bible clubs, prayers, religious meetings should all be a part of a free society. It can get sticky. Do we allow a prayer group where everyone smokes peyote? I realize there would be big problems today if religious expression was left to the local people to work out. We are very diverse. My nostalgia is not from neurosis, I rarely think of them good ole days because I never felt they were all that good. I am not saying we should even go back. I have adjusted I think. I am saying that the course we have taken with the Constitution, especially adding the 'Separation Clause' as a means of removing religious expression will lead us to a pure pluralistic society. A purely pluralistic society is one where religion must stay inside the doors of the church. It is banned from coming out into the public. Thus the term' pluralism'. Real life is no place for religion so its expression outside the thoughts of men is an infringment upon real life. This has always been the philosophy behind religious oppression and even persecution. In my faith I cannot separate my life from my religion at all. They are the same. The truth is we all live and choose by the perceptions of our belief systems. Everyone practices a religion. Religion is what defines these three questions in the human heart. 1. Who am I?- Identity 2. Why am I here?- Purpose 3. Where am I going?- Destiny The motives, attitudes, words, actions and thoughts of humans express the religion of the heart. If there is no God - I would sum the creed as 'Do what you think is right' If there is a God- I would encourage the creed 'Do what God thinks is right' Either way, I hope to keep reading my Bible at lunch. There are restaurants in India, Saudi Arabia, China, Sudan, North Korea, Indonesia where I could be arrested, even killed.
Removing religious beliefs from courthouses and public schools is not first step (or a step along the way) to what you call a pluralistic society. I actually can not image that a pluralistic society as being a destination of our county. And to suggest otherwise is a bit extreme.
No Worries- Sorry I typed wrong- I was defining secularism, not pluralism Pluralism is where you can't allow any one expression because you must allow all. It is forcing everyone to embrace each other's religion. A better word for pluralism is forced tolerance (like in communist countries) Secularism is the isolation of the religious from the secular. Not that I am not confusing enough.
Thanks a lot I really appreciate that and may I say I've enjoined debating with you. I also appreciate how you are working through these issues yourself. I think this is the crux of the matter. A system is only as good as the people who run it. I believe we have a great system and what makes it great is that it allows for and is affected by exactly the type of debate we are having. I don't think the Founders could have envisioned the type of country that we have now and the type of issues that we face but their genius is that they set up a system and a framework that can deal with those changes while still laying down a few basic premises. So I don't think we're ever going to have a consensus about what role religion plays in government and society and in a sense I don't think we're supposed to.
