Judicial Activism vs. Liberty
Elena Kagan called the military’s “Don’t Ask, Don’t Tell” policy “a moral injustice of the first order.” A moral injustice of the first order? Where on her moral hierarchy is a real “first order” injustice like murder? Not high enough. For Elena Kagan, sexual standards that protect military readiness are a moral injustice, but tearing apart a baby in the womb is a moral right.
I have little doubt that given the opportunity, Ms. Kagan would impose this kind of inverted moral reasoning in her judicial opinions. She already advocated as much when she clerked for Justice Marshall, and when she distorted information about partial birth abortion as a policy advisor to President Clinton. She wants to correct what she sees as injustices from the bench.
That should scare everyone. By whose standard is she declaring something injust?
Whenever someone talks about injustice, they are implying that there is such a thing as justice. You can’t know what is not just unless you know what is just. True justice, however, requires grounding in something other than human opinion. Otherwise, we are left with the problem of, “Who sez?”
According to our Declaration of Independence, that grounding is our Creator. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Our founders called this “Nature’s Law” or “Natural Law”—the same Natural Law that Vice President Joe “Ted Knight” Biden pooh-poohed when he was the Senator from Delaware during Clarence Thomas’s confirmation hearings. (My money is on the intellectual firepower of our founders, not Ted Knight.)
If there is no God, then everything is just a matter of opinion—kicking out of the military people who commit homosexual acts is no better or worse than keeping them in. In fact, if there is no God, Mother Teresa was not morally better than Hitler in any objective sense. In order for Mother Teresa’s behavior to be “better” than Hitler’s, there has to be an objective standard of “best” beyond both of them by which we can measure both of them.
C.S. Lewis put it this way, “The moment you say that one set of moral ideas can be better than another, you are, in fact, measuring them both by a standard, saying that one of them conforms to that standard more nearly than the other. But the standard that measures two things is something different from either. You are, in fact, comparing them both with some Real Morality, admitting that there is such a thing as a real Right, independent of what people think, and that some people’s ideas get nearer to that real Right than others. Or put it this way. If your moral ideas can be truer, and those of the Nazis less true, there must be something—some Real Morality—for them to be true about.”
My question for Ms. Kagan is this: What’s your standard? By what standard is “Don’t Ask, Don’t Tell” “a moral injustice of the first order” and abortion a moral right?
Does she appeal to the Constitution? Certainly the Constitution says nothing about homosexuality or abortion (despite what activist courts have said). But the Constitution does assign the authority to Congress (not the courts) to establish rules for a well-functioning military. That’s why Kagan’s cries of unjust discrimination by the military are false. She needs to understand that military service is not a right. As I’ve argued before, for the sake of national security, the military rightfully discriminates against numerous behaviors and conditions. Recruits can only qualify if they meet rigorous physical and mental standards and agree to give up certain behaviors (that’s why it’s called “service”). This has always been true about the world’s greatest military beginning with George Washington’s army. Since joining the military is not a constitutional right, along with these other reasons, “Don’t Ask, Don’t Tell” is certainly constitutional.
Does Ms. Kagan appeal to God and Natural Law for her standard? I doubt she would go there. If so, she would have to make the untenable case that God believes homosexual behavior and abortion are moral rights. That’s anything but self-evident, as evidenced by the texts of all major religions, the “laws of nature,” and the design of the human body. Our founders called homosexuality a “crime against nature” for a reason.
If Natural Law and the Constitution are not standards of justice for Ms. Kagan, what is? She’s left with nothing but her own personal moral standard. “Who sez?” is not Natural Law or the Constitution, but Elena Kagan. And that’s exactly the problem with activist judges. They ignore the laws of nature and the laws of the land to legislate their own laws based on their own personal standard of morality—and in the case of liberal activists, it’s usually a very bizarre, morally inverted standard.
“But you can’t legislate morality!” Nonsense. All laws legislate morality. Each law declares one behavior right and its opposite wrong. The only question is, “Whose morality will be legislated?” Unfortunately, activist judges often ignore our common “self-evident” morality in order to legislate their own immorality on the rest of the nation.
That must stop if freedom is to survive. All freedom-loving Americans should oppose judicial activists. Even if you agree with Ms. Kagan on certain issues, you should want the people to retain the power to govern themselves. Otherwise, when she disagrees with you, you will have little practical recourse. So, if you want legal abortion or gays in the military, then persuade your fellow citizens and legislators to vote for such measures. Pass a constitutional amendment like we did with slavery and women’s suffrage. That’s what the amendment process is for!
But don’t give up your liberty and the ability to govern yourself by allowing unelected, lifetime-appointed, judges to impose their view of what’s good for America on you and the rest of the country. That’s judicial tyranny, plain and simple, and that’s exactly what we’re asking for when we put judicial activists on the Supreme Court.
“Don’t Ask Don’t Tell” is not “a moral injustice of the first order.” Giving up liberty won by the sacrifice of millions is.
July 4th, 2010 at 8:37 am
“Where on her moral hierarchy is a real “first order” injustice like murder?”
Where in the bible does one get one’s moral hierarchy from? Are there passages that say murder is worse than stealing bread?
With regards to arguing against homosexuality using the bible, any judge will be aware that the lemon test requires all laws to have a secular justification. That’s why people can no longer use the bible to justify slavery.
July 4th, 2010 at 12:11 pm
We’re not talking about the Bible here, we’re talking about the Constitution and Natural Law. (But if you want verses that address a moral hierarchy in the Bible, then read Mt. 22-23, particularly Mt. 22:37 and Mt. 23:23. Some sins are worse than others, but the Bible treats all sins seriously because they all separate us from God).
The “Lemon Test” is another example of judicial activism, and is not neutral because it presupposes atheism. The “Lemon Test” would not pass muster with many of our early presidents, many of whom used tax money to evangelize and build churches (including Thomas Jefferson).
Nathan, are you a supporter of Judicial activism? Do you think judges should make law rather than the people?
Blessings,
Frank
July 4th, 2010 at 3:42 pm
Nathan, are you a supporter of Judicial activism? Do you think judges should make law rather than the people?
I’m sure, Mr. T., that many would be fine with this as long as the judge passed laws that came out of their bible and made them feel good about always being right because their god says so.
July 4th, 2010 at 3:52 pm
“We’re not talking about the Bible here, we’re talking about the Constitution and Natural Law.”
You were quoting both the Declaration of Independence and the bible. There’s no mention of God anywhere in the Constitution.
Your argument appears to be
A) Kagan’s interpretation of the bible on gays (which she shares with at least two Arch Bishops I can think of - Tutu and Rowan Williams) is different to yours, therefore
B) She has no basis on making any moral judgments whatsoever.
Followed to it’s natural conclusion, that would mean every Christian denomination would reject the ability of every member of the thousand or so other denominations to make any moral judgments. This chaotic scenario could be another good reason why the founding fathers deliberately left any mention of a deity out of the constitution. Regardless of their reasons, they had plenty of opportunity to put it in, had many votes on the subject, and voted it down every time.
Furthermore, you’re effectively calling for a religious test of office.
“The “Lemon Test” is another example of judicial activism, and is not neutral because it presupposes atheism.”
It does nothing of the sort. It may presuppose secularism in American Law, and is entirely constitutional, for the reasons explained above. Therefore your question about Judicial activism is irrelevant.
July 4th, 2010 at 5:23 pm
One of the things about Kagan I do not like is she has never actually sat on the bench and functioned as a judge. I find it highly unusual to nominate someone to a lifetime appointment as a Supreme Court Justice who has never been a judge.
I know the topic is about Kagan, but what do some here think about the recent split decision by the high court concerning the handgun ban in Chicago? We have an ammendment in the constitution clearly granting the right to bear arms and we had four of nine justices who were willing to allow a city to ban private handgun ownership.
July 4th, 2010 at 8:04 pm
Nathan,
The issue is natural law, not the Bible. Please read the column carefully.
Where is “the Lemon Test” in the Constitution? Why did the early presidents and congress give money to evangelize if it was unconstitutional?
Again, are you for Judicial activism? If you care not to discuss the point of the column, that’s fine but I have no time to defend a point I’m not making.
Blessings,
Frank
P.S. Did you hear about Hitchens? Just sent him an email.
July 4th, 2010 at 8:19 pm
BTW, secularism = atheism
July 5th, 2010 at 4:29 am
I don’t know what the fuss is all about, I mean, any(liberal)one can tell you the founders were a bunch of gun banning, abortion mill operators who abhorred -so called- free speech that may have in any way offended the sensibilities of correct thinking, 20th century, New York liberals.
Now that we are well into the 21st century, can there be any doubt as to the veracity of the above statement of facts? If you think so, all you need do is seek the counsel of your a.c.l.u. Local 666 and they will set you straight.
Several saints from heaven, in black robes, have decreed that babies in the womb have NO right to life / that municipalities can confiscate private property for no other reason than to enhance tax revenues / that killers, rapists, molesters, terrorists, etc. should go free if they are not read “miranda rights” / that our exhalations are a “pollutant” / etc., etc. so maybe people who go around questioning such wise decisions should be subject to the wrath of these great men and women in black.
Oh for dream show trials of monumental proportion!
July 5th, 2010 at 4:39 am
BTW, secularism = atheism”
Since you brought up Hitchens, a quote from the man seems particularly appropriate to answer the above. Sometimes someone says something so self-evidently incorrect, rather than refute it, one simply needs to underline it.
July 5th, 2010 at 7:30 am
The issue is natural law, not the Bible. Please read the column carefully.
Frank, there’s nothing wrong with my comprehension. You said: That’s anything but self-evident, as evidenced by the texts of all major religions, the “laws of nature,” and the design of the human body.
Your argument remains the same. If you insist, I can reword it thus:
A) Kagan’s opinion on gays, (with which she can cite common ground with Arch Bishops, biologists and psychologists) is different to yours, therefore
B) She has no basis on making any moral judgments whatsoever.
Regarding your meta-ethics point, I specifically addressed the religious text aspect as I didn’t want to go down a rabbit-trail discussion of
a) the subjective view of what the human body was designed for (mountain climbing? IVF? Flying planes? Appendix removal? A diet rich in red meat?)
or b) questions such of as whether a gay woman sleeping with a man is ‘going against nature’ or ‘going with nature’. Similar to ‘if a woman develops facial hair, should she let it grow (because it’s not natural for women to shave), or get rid of it (because it’s not natural for her to have a beard)’
People argued in the past that slavery was permissible on pretty much all the points you use here: Condoned by most religious texts, it’s natural, it’s biological, “Thomas Jefferson did it”.
And there are plenty of other ‘natural law’ arguments that you would reject as trying to get an ‘ought from an is’. Perhaps it’s ‘natural’ for men to seek multiple partners to spread their seed. Perhaps it’s quite UNnatural for someone to join a nunnery rather than have children. Would you accept these as a coherent basis on which to judge the morality of their actions?
July 5th, 2010 at 10:33 am
I know the topic is about Kagan, but what do some here think about the recent split decision by the high court concerning the handgun ban in Chicago? We have an amendment in the constitution clearly granting the right to bear arms and we had four of nine justices who were willing to allow a city to ban private handgun ownership.
I think that there should be bans on some kinds of guns. I don’t believe the city was saying that people couldn’t own ANY kind of gun (I’m not sure on this point, but I’ve not heard it mentioned before so I assume it’s just handguns they want banned). It doesn’t say anywhere in the second amendment what kind of arms a person may have. Does a private citizen have the right, not to mention the need, to own guns designed for militaristic use? Assault weapons, fully automatics, etc. I would feel better knowing my neighbor doesn’t have those sorts of things laying around. So banning a certain kind of gun doesn’t infringe on a person’s right to own other kinds. In a home security situation a shotgun would work just as well, if not better, than a glock.
Nathan is on to something in his questioning of what is ‘natural’. Is is natural for a man to take a vow of celibacy just because he wants to deliver sermons? Man is hear to procreate right? That’s ‘natural’!
July 5th, 2010 at 10:38 am
Nathan,
If you can’t admit that men were designed for women– that there is a natural teleology to the body and by extension life– then there is no use discussing this. Natural law is “self evident,” yet some still choose to deny it (like our buffoonish VP). But those that do (as you have done before) loose all moral authority for their positions. If there is no design or purpose to life, then there’s nothing objectively wrong with anything including DADT, slavery, or outlawing abortion. (BTW, slavery in the Bible was more like indentured servitude not like slavery in England and the US, but that deserves a complete post).
Kagan side-stepped the question of Natural Law in her confirmation hearings only saying that she was to stick to the Constitution. Again, there is nothing in the Constitution about gays in the military or abortion. If the Constitution is her standard, she’s out of moral justification for her political positions.
You keep avoiding the central point of the column. So last time: Do you believe in judicial activism– that unelected justices should usurp the power of the people and make laws themselves?
Blessings,
Frank
July 5th, 2010 at 10:54 am
“slavery in the Bible was more like indentured servitude not like slavery in England and the US”
That’s utterly shameless. There are passages that make it clear that the children of slaves are also your slaves. How does does that fit in with indentured servitude? Other passages make it clear it is not a sin to beat your slave to death, as long as they take more than two days to die. So my point stands on that comparison.
“If you can’t admit that men were designed for women…”
So what’s the design plan for hermaphrodites, for the infertile? I’m afraid your attempt to simplify such a complicated issue as life just doesn’t fit in with the natural world. People are welcome to differ with you on this issue and explain their positions. It is far from a priori, despite your attempt to shut down debate on the issue.
“that unelected justices should usurp the power of the people and make laws themselves?”
Sorry, but my critique of your blog, specifically that it’s nonsense to argue that anyone who disagrees with you on the issue of homosexuality has no basis for meta-ethics, has nothing to do with the issue of judicial activism.
July 5th, 2010 at 11:12 am
Nathan,
There is nothing wrong with ANY kind of slavery if your worldview of atheism is true.
Hermaphrodites or the infertile have defects that occur in a fallen world and do not negate the fact that there is a real design (otherwise we wouldn’t know they were defects).
Sorry you repeatedly refuse to answer my direct question about judicial activism. I have to assume you are for it.
Have a good day.
Blessings,
Frank
July 5th, 2010 at 11:22 am
So Toby. Are you saying that it is OK to ban private gun ownership of gun types the courts say are not OK? What if the courts banned private owenership of every type of gun except one? Would you think the second ammendment would still be upheld?
You are correct that the constitution does not mention what type of arms can be beared. But why would you take the position that it is OK to ban certain types of guns? What would be the purpose of banning private gun ownership of law abiding citizens?
July 5th, 2010 at 11:27 am
“There is nothing wrong with ANY kind of slavery if your worldview of atheism is true.”
Regardless of whether that’s true or not, it’s that’s completely irrelevant to the discussion.
“Hermaphrodites or the infertile have defects that occur in a fallen world and do not negate the fact that there is a real design (otherwise we wouldn’t know they were defects).”
Begging the question and avoiding the point that I was making. Regardless of whether hermaphrodites are evidence or not of design, what is ‘natural’ for a hermaphrodite to do with regards ‘married relations’ etc?
“Sorry you repeatedly refuse to answer my direct question about judicial activism. I have to assume you are for it.”
You should assume nothing. Given that we disagree on examples of what is or isn’t unconstitutional (prayer in school, Lemon Test etc), you and I might well disagree on what constitutes judicial activism. At any rate, I explained several times that I was trying to keep the discussion of my point on track, despite you trying to derail it. Has Kagan even stated that she views DADT as unconstitutional (rather than simply immoral)?
July 5th, 2010 at 3:35 pm
Are you saying that it is OK to ban private gun ownership of gun types the courts say are not OK? What if the courts banned private owenership of every type of gun except one? Would you think the second ammendment would still be upheld?
Courts wouldn’t be banning anything. It’d have to be done by states or federally. The idea of banning all but one type of gun is ludicrous. Why must these conversations always be taken to the outer limits of extremism in whatever topic is being discussed?
But why would you take the position that it is OK to ban certain types of guns? What would be the purpose of banning private gun ownership of law abiding citizens?
Why? Why do you need a .50 caliber chain gun? Why does anyone need a gun designed for use by the military? Why does anyone (aside from law enforcement/military) need a handgun with a clip that holds 15 rounds of ammo? There’s a point where the “self defense” argument starts to get thin. Like, “I need this AK-47 to protect my home!” . . . who or what army has this person p!ssed off to need an assault rifle?
I’m not saying that we should ban private gun ownership. I’m saying there are guns that citizens don’t need to have access to. Hell, I have a few guns myself. I was raised in the sticks shooting .22s and shotguns at targets and squirrels and deer and birds. With that in mind I can’t think of a decent reason for anyone to have guns much beyond those. Small caliber guns and shotguns, perhaps higher powered hunting rifles in states that allow them for hunting. The thing that left a big impression on me as a kid was my dad, being a life long hunter/gun owner, saying about handguns, “Those things are dangerous.”
July 5th, 2010 at 4:47 pm
There is nothing wrong with ANY kind of slavery if your worldview of atheism is true
Bollocks. It may not be “objectively true,” but there are plenty of forms of atheism and agnosticism which allow one to believe (and enforce) the idea that slavery is “bad,” or “wrong,” or “not a good idea,” among other things. This is just more of the same desperate scare-tactic the Evangelical right uses when they run out of arguments in defense of the supposed “moral monopoly” of Christianity.
Absolute bollocks.
July 5th, 2010 at 4:57 pm
Just calm down Toby. I am just asking questions to understand your point of view better. As I understand it, the question before the court was banning private handgun ownership. So we both can explore the fringes of gun ownership by siting examples that appear to be ridiculous, but that really does not address the question before the court.
Any gun is dangerous Toby. But any gun can be handled properly and with safety if properly trained. What would be the purpose of banning private handgun ownership? Also, does this purpose legitimately over ride the second ammendment?
One thing appears to be true. People on the website are overly suspicious and cautious when it comes to answering a few seemingly simple questions. What is the deal?
July 5th, 2010 at 6:49 pm
Tim,
Glad you agree that without God there is no objective morality. You are correct.
Nathan,
The Lemon Test is not in the Constitution and conflicts with the actions of the founders who wrote the Constitution. They used tax money to evangelize! The Lemon Test is itself a case of Judicial Activism. I don’t care what you call it, but if support the Lemon Test then you support judges making law and usurping the will of the people.
Blessings,
Frank
July 5th, 2010 at 7:11 pm
Glad you agree that without God there is no objective morality. You are correct.
1) Of course I don’t believe there is such a thing as “objective morality.” I’ve argued that from the beginning.
2) That is not correct. Without god there can very well be objective morality; I don’t see any reason why an objective “source of morality” could not exist and yet not be the Christian god. There’s nothing intrinsically linking the two together, and there’s no evidence to say that one cannot exist without the other.
For example, if I said, “I believe there is an objective source of morality which is NOT the Christian god, and I believe that you and I both have access to it at all times through some unidentifiable ’sixth sense,’ so to speak,” then what could you possibly say to prove that I am wrong (other than arguing for or against OM in general)?
July 5th, 2010 at 8:57 pm
“For example, if I said, “I believe there is an objective source of morality which is NOT the Christian god, and I believe that you and I both have access to it at all times through some unidentifiable ’sixth sense,’ so to speak,” then what could you possibly say to prove that I am wrong (other than arguing for or against OM in general)?”
Well, that settles it for me: Only things that have been learned since the birth of Tim…oops! Only knowledge that has been learned by Tim is of any significance to any particular discussion. (it does make sense, I mean, if your world view is that we are all “beginnings and ends in ourselves”…kinda neat bein’ the center of the universe, isn’t it?)
July 5th, 2010 at 10:16 pm
So let me get this straight. There is no objective morality and without god there can be objective morality. Are you sure that is an objective observation?
All kidding aside, if there was what you refer to as an objective source of morality, would this not require that the source have ‘god-like’ qualities? I do not follow your line of reasoning regarding your second point.
July 5th, 2010 at 11:35 pm
What would be the purpose of banning private handgun ownership? Also, does this purpose legitimately over ride the second ammendment?
The purpose is that at some point the city officials believed this would have an ameliorative effect on gun violence. Did it? I don’t know. It might be nice for a news source to cover this. I’m sure some have, but I’ve just not cared enough to look into it.
Does it legitimately override the second amendment? I don’t think it overrides it at all. The citizens still have the right to own guns. There’s nothing in the amendment saying anything about the right to own any and all firearm manufactured. The difference is that there are guns that they WANT, but aren’t allowed to get. Kind of like some people want to have a bunch of seldane (an antihistamine that is now banned due to heart complications and deaths), but it’s withdrawn because it’s dangerous and there are plenty of other antihistamine options out there.
July 5th, 2010 at 11:42 pm
I don’t see any reason why an objective “source of morality” could not exist and yet not be the Christian god.
I don’t either. I think it very likely that ‘objective morality’ could be defined in terms of biological survival. Sort of like, “Murder is wrong because it weakens the chance of DNA being passed on.” But again I say that there is no objective morality because you can think of dozens of reasons why supposedly objective morals can be ignored.
July 6th, 2010 at 4:42 am
Frank, I was wondering how long before you brought up your ‘atheism = no objective morality’ argument. Seeing as you weren’t arguing that Kagan is an atheist, it has nothing whatsoever to do with the argument you were offering, which was the argument I was dealing with. Had you started off with that argument, I wouldn’t have bothered posting, as it’s an argument I’ve dealt with several times before, and have little interest in debunking again.
I can only imagine you are bringing it up now to derail the discussion. Tim and Toby are now addressing it, so you’ve succeeded. But you’ve also seceded the original argument
I was addressing this:
A) Kagan’s opinion on gays, (with which she can cite common ground with Arch Bishops, biologists and psychologists) is different to yours, therefore
B) She has no basis on making any moral judgments whatsoever.
I take it then that you are abandoning any attempt to address this point.
July 6th, 2010 at 8:06 am
Thanks for you answer Toby. I do not agree with you. For if we can claim to have justified banning certain types of guns to be owned by law abiding citizens, I do not see why we could not also claim to justify banning all types of guns for the same reasons. To me, bans like the one before the court will keep guns out of the hands of law abiding citizens but if you are a criminal and you want a particular type of gun, you are going to get it from somewhere.
I have no problem putting security measures in place to make it more difficult to obtain firearms and even more difficult to obtain ammunition for them. But I think it goes to far to start banning the ownership of them by law abiding citizens who are willing to go through those security measures.
July 6th, 2010 at 8:36 am
Kyle, out of interest, is there ANY limit that you would wish to place on the power of a gun that a law-abiding citizen can own? Is there ANY theoretical point, as firepower improves in the future, where you can imagine yourself saying ‘that gun is too powerful to put in the hands of members of the public, regardless of whether they currently have a clear criminal record’?
July 6th, 2010 at 9:03 am
For if we can claim to have justified banning certain types of guns to be owned by law abiding citizens, I do not see why we could not also claim to justify banning all types of guns for the same reasons.
Well . . . because of the second amendment? The idea that seems to be out there that “the evil gub’ment is going to take away our guns!” is ridiculous. It will never happen. Do people even know how hard it would be to take away that right? I doubt a constitutional amendment would ever, EVER make it through any sort of vote or ratification. So people need to stop advancing this silly idea.
Now what we’re talking about is restricting certain kinds of guns. The question we’ve really started discussing here is, “Do people have the right to own any gun ever made or that will ever be made?” Contrary to popular belief fully automatic weapons can be legally owned in the US. BUT these Class III guns must have been made and registered with the BATFE prior to 19 May 1986. So . . . if a new M-16 rolled off of the assembly line, you’re not allowed to buy it. Are a person’s second amendment rights compromised simply because these weapons are being made and yet they can’t go out and buy them? Does a weapons existence automatically make it a right for a US citizen?
I have no problem putting security measures in place to make it more difficult to obtain firearms and even more difficult to obtain ammunition for them.
Me too. I think everyone must have a license to own a gun, any kind of gun. My reason for this is that everyone must have a license to drive, meaning they know how to operate a car, they know the safety rules and have been shown how to use them. Cars can be deadly, but you can’t walk into a gas station with one under your coat and kill the attendant with it. I think all guns must be registered. And i think these things should be cheap and easy to do—especially with today’s instant technology. Register at the point of sale. Even used guns should be re-registered when they pass privately among people. Make it easy to register at post offices or any government building. It’d make it easier to trace the thing around if someone did get a hold of it to commit a crime or if a lawful citizen wasn’t so lawful anymore.
July 6th, 2010 at 1:36 pm
Good questions Nathan. I would carefully have to weigh the consequences of banning guns based on ‘power’ or ’size’. As Toby pointed out, there are currently restrictions on military style weapons now and really I do not have a problem with those. Also, I believe if you have a prior criminal record, legal gun ownership is out for you in the US. (Someone please clarify if I am wrong) I have no problem with that either.
Thanks again for you reply Toby. You make some good points. I guess the problem I had with the case before the court was this time it was a handgun ban. That goes a lot further than banning of the military style weapons you gave as examples. A handgun is a very broad and general topic that bans weapons long considered OK to bear throughout the history of this country. Not only that, but the decision was a splilt 5 to 4. The implications of the court upholding the ban was serious IMO.
I am in complete agreement with your license requirements. Those should be the first course of action IMO.
What I do not want us to do in this nation is ban every type of gun except a very specific type and then claim we are upholding the second ammendment. I believe such a claim to be a farce and tramples under foot what the founding fathers were after when the ammendment was passed.
July 6th, 2010 at 1:45 pm
Dr. Turek,
You said that Thomas Jefferson used tax money to evangelize and build churches.
What, specifically, are you referring to and can you please provide a citation?
I am just interested because this strikes me as incompatible with many of the things I know about Mr. Jefferson. (This is the man who wouldn’t issue Proclamations of Thanksgiving as President, and wrote these words (as part of a Virginia law prohibiting established religion): no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever..)
Like I said, this conflicts with what I know, so I am interested in learning more.
Thanks,
Luke
July 8th, 2010 at 12:33 pm
Dr. Turek,
Like Luke, I am interested in your statement regarding early Presidents (you later say, “founders who wrote the Constitution”) who utilized tax money to build churches. Also, like Luke, I would be extremely interested in your claim Jefferson (who fought such a proposal by Patrick Henry in Virginia prior to the U.S. Constitution) doing so.
Specifically, what Presidents or Founding Fathers are you referring to, and what is your source for saying it?
Thanks.
July 8th, 2010 at 7:10 pm
Luke and DagoodS,
This is from chapter 5 of our book “Legislating Morality.”
Many of our Founding Fathers gave federal money and federal land to a number of different Christian denominations so that those groups could encourage religion among the Indians. The evidence is telling:
(1) In 1795, President Washington approved a grant of $1000 to build a church for the Oneida Indians.
(2) In 1796, an act was passed by Congress under President Washington regulating the land given to the Society of United Brethren for “propagating the gospel among the heathen.” The act was extended under Presidents Adams and Jefferson.
(3) In 1803, Congress and President Jefferson approved a grant of $100 for seven years to a Roman Catholic Priest to evangelize the Kaskaskia Indians and $300 to help build them a church. Jefferson also approved similar treaties with the Wyandotte Indians in 1806, and the Cherokee Indians in 1807.
(4) In 1819, President Monroe, along with Congress, approved the grant of 640 acres to the rector of a Roman Catholic church in Detroit.
(5) In 1825, President John Quincy Adams, in a treaty with the Osage Indians, dedicated federal lands to a “missionary establishment” engaged in “teaching, civilizing and improving said Indians.”
(6) In 1833, Congress and President Jackson approved a grant of $3700 to build a church and a mill for the Kickapoo Indians.
(7) In 1838, President Van Buren, along with Congress, approved funds to help build a church for the Oneida Indians.
References are in the book. But if you want something online, Justice Rehnquist refers to some of these actions of the founding fathers– and gives a succinct summary of the First Amendment and its true intended meaning– in his dissent of “Wallace v. Jaffree” which can be found here: http://www.law.cornell.edu/sup....._ZD2.html.
Clearly then, the Lemon Test is unconstitutional, not the idea of the government supporting religion.
Blessings,
Frank
July 8th, 2010 at 9:55 pm
With regard to (2), specifically….A 5-minute google search turned up this rebuttal, from an article titled, “Propagating the Gospel Among the Heathen? — Another Lie from H. Res. 888.”
…The first thing that needs to be understood about any mention of “The Society of the United Brethren for Propagating the Gospel Among the Heathen” in any act of Congress or other official document is that this was the legal name of an incorporated society. Every act of Congress referring to this society, whatever its purpose, contains the words “propagating the Gospel among the Heathen” because it was part of the society’s name, not because the government was propagating the Gospel.
Mark Beliles, like many Liars for Jesus, puts only the words “propagating the Gospel among the Heathen” in quotation marks to make it appear that this was the purpose of the act. Others take advantage of a convenient printing error to achieve this effect. In the title of one of the several acts related to this land trust, a comma was mistakenly inserted in the society’s name after the word “Brethren,” inadvertently giving the impression that what followed the comma was the purpose of the act. This, of course, is the act that most religious right authors choose to quote.
Although the United Brethren were a religious society, and their purpose was to propagate the Gospel, Congress’s reason for putting a land grant in their name had nothing to do with religion. It was done to protect the land granted to a group of Indians.
At the beginning of the Revolutionary War, a declaration of Congress promised that any Indians who did not aid the British would have “all the lands they held confirmed and secured to them” when the war was over. In the years following the war, the United Brethren, concerned that a particular group of Indians, who not only remained neutral throughout the war, but had been both displaced by the British and attacked by American militiamen, might lose the lands they were entitled to. Because these Indians were unable to return at this time to claim the land themselves, the United Brethren petitioned the Continental Congress on their behalf. Congress agreed that these Indians had a right to the land, but, in order to secure their claim, the land had to be put in someone’s name. The solution that Congress agreed to was that the United Brethren form an incorporated society to hold the land in trust.
Makes sense. A lot of sense, actually. Compared to your vague descriptions, I’d be willing to bet that there’s a lot more to those stories than you’re willing to go into. I’ll be doing some research of my own this weekend either way, just in case~
July 8th, 2010 at 10:02 pm
P.S. With regard to #3, from “Liars for Jesus,” we can read this:
During his presidency, Thomas Jefferson signed over forty treaties with various Indian nations. The treaty with the Kaskaskia is the only one that contained anything having to do with religion. No other Indian treaty signed by Jefferson, including the other two listed by William Federer, contained any mention of religion. The following is the third article from the 1803 treaty with the Kaskaskia:
“And whereas the greater part of the said tribe have been baptized and received into the Catholic Church, to which they are much attached, the United States will give annually, for seven years, one hundred dollars toward the support of a priest of that religion, who will engage to perform for said tribe the duties of his office, and also to instruct as many of their children as possible, in the rudiments of literature, and the United States will further give the sum of three hundred dollars, to assist the said tribe in the erection of a church.”
The Kaskaskia treaty is used by different religious right authors in different ways. For those attempting to prove that Jefferson was a devout Christian, it is evidence that he wanted to promote Christianity to the Indians. Much more often, however, it is used as evidence that he approved of using government funds to promote religion.
The problem with using this provision as evidence that Jefferson approved of using government funds to promote religion is that it was in a treaty with a sovereign nation. Unless a treaty provision threatened the rights or interests of Americans, there was no constitutional reason not to allow it, even if that same provision would be unconstitutional in a law made by Congress. This was made very clear in a lengthy 1796 debate in the House of Representatives on the treaty making power, excerpts of which appear later in this chapter.
The problem with using the provision as evidence that Jefferson was trying to promote Christianity to the Indians is that the Kaskaskia were already Catholic, and had been for some time. Article 3 of the treaty even begins by stating that “the greater part of the said tribe have been baptized and received into the Catholic Church.” The support of a priest and help building a church were provisions that the Kaskaskia asked for, not things the government recommended or pushed on them.
July 9th, 2010 at 2:25 am
Dr. Turek,
Thanks a lot this is helpful. I will certainly do more research on this and it helps to have a place to start. If I have further thoughts on it, I may email you.
Frank Turek said:Clearly then, the Lemon Test is unconstitutional, not the idea of the government supporting religion.
Wait, so the founding fathers could never do or promote anything unconstitutional?
Thanks again,
Luke
July 9th, 2010 at 4:18 am
So if Jefferson kept slaves, does that make keeping slaves constitutional?
Is it against natural law for women past the menopause to have sex?
July 9th, 2010 at 8:17 am
“So if Jefferson kept slaves, does that make keeping slaves constitutional?”
The Constitution is not a perfect document. That’s why the founders put an amendment process in there. And that’s why slavery was made unconstitutional by the 13th amendment, not judicial activism.
BTW, Jefferson is not the best founding father to cite for meaning regarding the First Amendment anyway. As Chief Justice Rehnquist points out in his dissent, Jefferson was in France during the Constitutional Convention. I only bring Jefferson up because so many people erroneously think he practically wrote the First Amendment because later courts cite and misinterpret his letter to the Danbury Baptists (which was more than a decade after the CC).
The issue you brought up is the “Lemon Test.” My point is that any fair reading of history shows that the Lemon Test does not square with the language, intent, or actions of the folks who wrote the Constitution. Thus it is another case of judges imposing their will on the people. If the people want to avoid any government support, reference, or activity with traditional religion, fair enough. But have them vote on it.
“Is it against natural law for women past the menopause to have sex?”
No, because the bodies of men and women are obviously complementary and there is no harm done. That’s not the case with homosexual relations.
Blessings,
Frank
July 9th, 2010 at 9:10 am
Dr. Turek,
You missed my question above. The question was: so the founding fathers could never do or promote anything unconstitutional?
Let me ask what Nathan was getting at another way. Jefferson wrote that all men are created equal in the DoI. He also kept slaves. Does this mean that keeping slaves does not violate the concept of all men being equal?
Thanks,
Luke
July 9th, 2010 at 9:32 am
On the subject of the “Lemon Test” you have not given any reason for it to be unconstitutional.
Why is the lemon test unconstitutional?
The fact that the Founding Fathers may not have imposed one (I am not arguing whether they did or did not) does not make it unconstitutional unless you believe that anything the founding fathers did not do is unconstitutional.
Driving a car for example, is clearly unconstitutional according to that logic.
You are also simply wrong logically to say that because the founding fathers may have supported building a church for example, that “clearly then the lemon test is unconstitutional.” (Both for the reason above and the reason I present below.)
For this to hold logically you would have to show that the Fathers saw no secular purpose or any of the things you listed.
They may have simply believed that religion leads to more moral behavior among citizens. (Many said things like: reason and experience both forbid us to expect, that national morality can prevail in exclusion of religious principle.)
Moral behavior, a republic may decide (and they seem to almost elusively), is desirable for secular reasons (safer, more stable communities, for one). They may believe, as I said, that religion is the only way to achieve this. This gives a secular reason for promoting religion.
The lemon test does not mean that anything with even a slight hint of religiosity is to be deemed unconstitutional. Churches are hugely favored by our current laws, and very few find this unconstitutional. This is because most people believe (whether the claim is true does not matter here) that there is a secular, societal benefit for this.
Let me give you a different example. If I donate $100 to a church of a denomination different than my own, because that church has a great program of outreach and help to the homeless, I have given money to the church for a secular purpose. You seem to implicitly reject that this kind of reasoning as even possible, but if so, you are simply wrong, as my example shows.
July 9th, 2010 at 9:54 am
Dr. Turek and Tim D.
Thank you very much for the references. Much appreciated. The Rehnquist dissent in Wallace v Jaffree was a good read.
Dr. Turek, I would be curious—if you propose to do away with the Lemon test; what test would you like the Courts to use to determine whether a statute violates the First Amendment when it comes to religion?
July 9th, 2010 at 11:20 am
Good question DagoodS (about the lemon test).
If the congress passed a law that said “Every person must go to church for at least one hour on Sunday” would this be constitutional, Dr Turek?
Why or why not?
Thanks,
Luke
July 9th, 2010 at 11:46 am
Interpreting the Constitution?
“On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.” –Thomas Jefferson (1743-1826), letter to Judge William Johnson, (from Monticello, June 12, 1823)
Obviously, compulsive worship by an act of Congress would violate the clear wording and intent of the First Amendment.
“Secular purpose” of the Lemon Test is no where in the language or intent of the Constitution.
“Jefferson wrote that all men are created equal in the DoI. He also kept slaves. Does this mean that keeping slaves does not violate the concept of all men being equal?”
Of course slavery in our country violated the concept of equal rights. No one said that the founding fathers were always consistent. Many actually lamented slavery but compromised in order to create a union particularly with Southern States (a brief summary of this can be found here” http://www.usconstitution.net/.....ml#slavery). The question is, what does the constitution say and what did the founders intend. They didn’t intend to do away with slavery in the constitution in 1787 or 1791– just like they didn’t intend women to vote– but they did put the amendment process in place that would be the means by which slavery was finally outlawed. And that’s the process that puts the people in control, not unelected judges.
Blessings,
Frank
July 9th, 2010 at 12:49 pm
Frank Turek said:Obviously, compulsive worship by an act of Congress would violate the clear wording and intent of the First Amendment.
Why?
Does it: make a law respecting an establishment of religion?
No. It does not establish a religion, nor respect the establishment of religion. What religion has been established by this law?
Does it: prohibit the free exercise thereof?
No, I can still practice any religion and pray in any way I want.
So why exactly is it unconstitutional, and why is that fact so obvious?
Frank Turek said:No one said that the founding fathers were always consistent.
Yet you rely on such an assumption when you say that things that the founding fathers did clearly illuminate the meaning of what they wrote.
You simply cannot draw that conclusion if simple inconsistency on their part is a possibility.
July 9th, 2010 at 12:55 pm
Dr. Turek,
So if I understand you correctly, the only problem you have with the Lemon test is the first prong—“have a secular legislative purpose”? Are you saying the test you would have the courts use would be the last two prongs of Lemon?
July 9th, 2010 at 1:41 pm
Luke, Their inconsistency lies in the difference between their moral knowledge and their behavior (something that plagues all of us). Jefferson and many of the other founders believed everyone was equal, but they didn’t apply it to slavery in the constitution.
Luke, please, a law forcing everyone to attend church violates would violate the clear language of “Congress shall make no law….”
DagoodS,
The problem with the Lemon Test is that it is completely judge invented. One could make the case that it is wise and preferable. If so, pass a law, but don’t tell us it’s part of the constitution when it’s clearly not.
Blessings,
Frank
July 9th, 2010 at 1:55 pm
“Luke, Their inconsistency lies in the difference between their moral knowledge and their behavior (something that plagues all of us). ”
Yes, this was my first thought as well when you first brought up Jefferson evangelizing to Native Americans. We can easily find quotes from him strongly suggesting he would be against such a practice. The fact that he wasn’t always consistent with his stated intentions for the nation - in short he was human - doesn’t mean that his stated intentions are bunk.
“No, because the bodies of men and women are obviously complementary and there is no harm done. That’s not the case with homosexual relations. ”
And the body of a post-menopausal women is ‘obviously’ no longer meant to have children. It’s special pleading to claim otherwise.
.
July 9th, 2010 at 2:12 pm
Nathan, the issue is the constitutionality of supporting religion, not Jefferson’s personal feelings. Clearly it was constitutional as Jefferson and several other presidents did so.
PM women are still women. Just because certain sex between men and women fails to result in children, does not make the act itself unnatural (pregnancy is only possible a few days a month). But homosexual acts are always unnatural. Putting non-nutritious food in my mouth is not unnatural, but putting it my ear is.
Of course if atheism is true, there is no design. There is no purpose. There is no natural or unnatural. We are just molecules in motion so no act is any better or worse than any other. So I understand your position.
Blessings,
Frank
July 9th, 2010 at 2:47 pm
“Clearly it was constitutional as Jefferson and several other presidents did so.”
And yet when presented with the problem of the same men owning slaves, we are forced to admit, as you did in your last posts, that the men were not perfect, and that neither was the constitution.
So back to square one. Are we judging by the constitution alone, or by the acts of men where you admit: “inconsistency lies in the difference between their moral knowledge and their behavior”
This is why I figured it would be a waste of time if the discussion fell into quote wars, where two sides present contrasting quotes from the same men. You can find the same discussions presented a thousand times online. At the end of the day, smarter people than us have had the same arguments in courts.
“PM women are still women.”
Yes - women who cannot have children.
“But homosexual acts are always unnatural…
And by the same reasoning, post-menopausal sex can never lead to children, and thus is also always ‘unnatural’. At any rate, you encounter the old problem referenced in your ‘albatross of an argument’ blog. It’s a bit odd to describe something as ‘unnatural’ when it occurs so frequently in nature. Countless other species have been observed to do it.
Does that make it moral? No, but it makes the ‘unnatural’ claim a strange one. That leaves you with claiming it is unnatural because it cannot lead to children, which leads you back to the PM women point.
“Of course if atheism is true, there is no design.”
Irrelevant again, Frank. I have deliberately made no argument on this thread that only works if God doesn’t exist. You claim to be making a ‘natural law’ argument, and that is what I am engaging with.
July 9th, 2010 at 2:53 pm
“And yet when presented with the problem of the same men owning slaves, we are forced to admit, as you did in your last posts, that the men were not perfect, and that neither was the constitution.”
I’ll add to that that you also point out that the founding fathers may have made some ‘unconstitutional’ decisions for pragmatic reasons, not applicable today, such as condoning slavery. Evangelizing to Native Americans to get them on side could easily be seen in the same light.
July 9th, 2010 at 2:54 pm
Dr. Turek,
So that takes me back to my original question—what test do you propose Courts use as an alternative to Lemon when determining whether a statute violates the US Constitution regarding religion?
July 9th, 2010 at 2:57 pm
Nathan,
“Smarter people than us?” Now you’re saying that because some smart people disagree there is no right answer. That is not only false itself, but self-defeating.
The plain truth is that all the instances of supporting religion by the FF shows it is not unconstitutional. It is not quote wars, it is what they did! It couldn’t be more clear, but you continue to deny it. That’s your right, but I’m done discussing it.
Natural is defined by the teleology of the body, not the behavior of those with the bodies (e.g. animals). Animals eat their young. Should we do that too?
Gotta go for today. Thanks.
Blessings,
Frank
July 9th, 2010 at 3:27 pm
Frank Turek said: Luke, please, a law forcing everyone to attend church violates would violate the clear language of “Congress should make no law….”
Then you should have no trouble explaining why, instead of spending time repeating the same assertion again and again.
Frank Turek said:instances of supporting religion by the FF shows it is not unconstitutional
Again, only if there is not possibility of inconsistency on their part, which you’ve already admitted exits.
If it’s NOT possible for a man to write a law then break it, then you’ve proved your point. If it is possible, then you’ve shown nothing at all.
July 9th, 2010 at 4:41 pm
Just some questions for those here. You keep going back and forth about the FF supporting religious causes with the federal government by using the slavery argument to point out inconsistenties by the FF.
However, I do not see the point trying to be made by those opposing Frank’s assertion because we have added an ammendment to the constitution since the FF owned slaves outlawing the practice.
Since we have no such specific additional ammendment relating to government support of religion, I do not see how the argument being presented makes the point trying to be made.
Are you saying the the FF were wrong to do what they did regarding support of religious institutions? Or rather are you just pointing out the possibility that they could have been wrong? Or are you saying something else? Thanks.
July 9th, 2010 at 5:34 pm
Of course if atheism is true, there is no design. There is no purpose. There is no natural or unnatural. We are just molecules in motion so no act is any better or worse than any other. So I understand your position.
Do you have so little faith in your cases alone that you must constantly divert to these little distractions about “well, if ATHEISM is true, then [insert illogical supposition here]!”?
Luke, please, a law forcing everyone to attend church violates would violate the clear language of “Congress should make no law….”
How so? Congress should make no law respecting an establishment of RELIGION. How is the vague statement of “thou must attend church” an “establishment of religion” by those guidelines? It doesn’t support any one religion. Unless you mean to argue that compelling them to act in accordance with any religion, in principle, is unconstitutional….so is that what you’re arguing?
The problem with the Lemon Test is that it is completely judge invented. One could make the case that it is wise and preferable. If so, pass a law, but don’t tell us it’s part of the constitution when it’s clearly not.
First off, the “lemon test” is not some kind of law in itself. It’s an exercise to help people think around corners when interpreting the law — if there’s no secular purpose for a law, then chances are that it’s establishing a religion (or mandating a policy based on the tenets of a certain religion, which is also supporting the establishment of a religion and therefore unconstitutional). So the point isn’t that “it’s wrong if it has no secular purpose,” but rather that, if it has NO secular purpose, then there is no common legal ground on which to base it as a law.
And by the same reasoning, post-menopausal sex can never lead to children, and thus is also always ‘unnatural’. At any rate, you encounter the old problem referenced in your ‘albatross of an argument’ blog. It’s a bit odd to describe something as ‘unnatural’ when it occurs so frequently in nature. Countless other species have been observed to do it.
I’d say that whether it’s “natural” or not is completely irrelevant. What’s natural for bears isn’t necessarily natural for humans and vice-versa….and besides, who is it that gets to decide which people are acting “naturally” and which ones are acting “unnaturally?” All “natural” means is, “occurs naturally.” And if humans behave on their impulses, then doesn’t that mean that a chronic rapist/murderer is acting “naturally?” So does that mean it’s “okay?” Of course not. Vice-versa — as they used to say, “if man were meant to fly, he’d have been born with wings.” So is flying in an airplane “unnatural?” Even if it is, I’d hardly say that makes it wrong. It seems to me that people confuse “natural” with “desirable to me.” People like Mr. Turek seem to think that, if they don’t like something someone does, it’s therefore “unnatural,” and if they like it or prefer it, then that makes it “natural.” Unfortunately, subjective human consensus is not enough to determine what makes human behavior “natural.”
So sorry to Mr. Turek, but he’s gonna have to come up with a better reason why homosexuality is bad than “I think it’s unnatural.”
Does that make it moral? No, but it makes the ‘unnatural’ claim a strange one. That leaves you with claiming it is unnatural because it cannot lead to children, which leads you back to the PM women point.
Mr. Turek’s argument has nothing to do with the practical applications of the system, but rather with the supposed “stated intent” (of god) for human reproductive design. The argument is, “that’s not what it was designed for, therefore to use it for that purpose is wrong.”
Problem with that is, it doesn’t follow through in every case. If using something for a reason other than its “intended use” is always wrong in principle, as this argument assumes, then it would be considered a “crime against nature” to use a professionally-recorded CD as a coaster (because the designer intended it to be listened to in a CD player, not used as a coaster).
Likewise, if I took a wild banana (which is clearly not edible by itself and probably not intended for direct human consumption) and I selectively bred it to produce the kind of domesticated banana that one can find at any convenience store (the bright yellow kind that’s sweet and easy to eat), then that would be completely “unnatural” and therefore “wrong,” because the banana was not meant to be eaten by humans. Unless you want to argue that it’s “intended” for humans to utilize creative methods like selective breeding to create a more desirable product. In which case we could use the same argument for homosexual intercourse — that it’s just a creative means for making the “product” more desirable for the party in question.
July 9th, 2010 at 6:54 pm
Tim:
How so? Congress should make no law respecting an establishment of RELIGION. How is the vague statement of “thou must attend church” an “establishment of religion” by those guidelines? It doesn’t support any one religion. Unless you mean to argue that compelling them to act in accordance with any religion, in principle, is unconstitutional….so is that what you’re arguing?
Kyle:
That is a good perspective for discussion. It would depend on how narrow or wide the interpretation of the first ammendment is. Some would argue from a very narrow perspective. The narrow view would prohibit public money from being given to religious institutions for any reason. It would also object to ‘non sectarian prayers’ being given at public gatherings sponsered by publically funded institutions. It would even object to the public display of any symbol that could be considered ‘religious’ in public buildings.
The wider view would be much more liberal in that publically supporting religious institutions are fine as long as there was no specific endorsement of a particular religion. Like the example you gave, requiring church attendance once per week could be OK as long as the law did not specifiy a particular religion or sect of a religion.
However, given the climate of first ammendment interpretation by the courts since the 1950’s, I would offer that the courts are currently applying a decidedly narrow view.
I think Frank’s overall point is that the courts have taken up the mantle of interpreting law based on the current social and cultural trends rather than sticking to interpretations based on the original intent of the law. He is making the point that we have a built in process to make/change the law based on the will of the people and the courts are at times circumventing this process. At least this is my opinion of his point and I could be wrong.
July 10th, 2010 at 9:42 am
Dr. Turek,
Essentially, you’re saying that:
=The government forcing people to give their money to religious organizations is clearly constitutional.
The government forcing people to give their time to religious organizations is clearly not constitutional.
I just don’t see the big and clear difference there.
(And given that the first case applies to specific creeds and denominations and the second, hypothetical one, does not: if one of them is indeed unconstitutional, as you claim, I’d like my chances in an argument for that being the latter much better, honestly. I am open to your argument though, and await further clarification.)
July 10th, 2010 at 9:44 am
Sorry, I’d like my chances in an argument for the latter (everyone must go to church) as being constitutional, given that it does not apply to any specific creed or denomination.
Sorry for the poor language.
July 10th, 2010 at 11:10 am
““Smarter people than us?” Now you’re saying that because some smart people disagree there is no right answer. That is not only false itself, but self-defeating.”
Apologies if I didn’t explain myself clearly, but that’s nowhere near what I was trying to say. Not sure if I’ve got the time to re-explain it clearer, perhaps later.
Luke and Tim have already now mostly said what I want to say.
In summary, your argument against gays seems subjective to me - your own ideas about what is unnatural, and what YOU believe God meant our bodies to be designed for. My PM woman argument can still apply - if you believed God designed women’s bodies for producing babies, then it seems to follow that the menopause marks the end of his baby-producing plan for that woman.
Second, the FF putting money towards evangelizing towards Native Americans doesn’t seem qualitively different from faith-based initiatives that occur in America today.
Third, as Luke says, commanding an American to put his money towards a specific religion does not appear to me to be constitutionally different from commanding him to put his time towards a specific religion.
The plain truth is that all the instances of supporting religion by the FF shows it is not unconstitutional. It is not quote wars, it is what they did!
By quote wars, I mean that we can easily reply with many quotes where the FF state that compelling men to support a specific religion, or even religion itself, is unconstitutional. And you’ve already admitted that the FF could be fallible and might not always practice what they preached. So ‘what they did’ is a not a reliable guide to their intentions, hence our need to put in place an ammendment about slavery.
July 10th, 2010 at 11:12 am
Sorry, italics the wrong way round on the last two paras:
The plain truth is that all the instances of supporting religion by the FF shows it is not unconstitutional. It is not quote wars, it is what they did!
By quote wars, I mean that we can easily reply with many quotes where the FF state that compelling men to support a specific religion, or even religion itself, is unconstitutional. And you’ve already admitted that the FF could be fallible and might not always practice what they preached. So ‘what they did’ is a not a reliable guide to their intentions, hence our need to put in place an ammendment about slavery.
July 10th, 2010 at 11:43 am
Nathan,
I was saying that the FF clearly thought slavery was constitutional even though some of them may have personally been against it. The inconsistency was between their personal beliefs and the law, not their actions as public officials and the law. It strains credulity to think that all of these presidents and congresses thought they were acting unconstitutionally by doing this:
(1) In 1795, President Washington approved a grant of $1000 to build a church for the Oneida Indians.
(2) In 1796, an act was passed by Congress under President Washington regulating the land given to the Society of United Brethren for “propagating the gospel among the heathen.” The act was extended under Presidents Adams and Jefferson.
(3) In 1803, Congress and President Jefferson approved a grant of $100 for seven years to a Roman Catholic Priest to evangelize the Kaskaskia Indians and $300 to help build them a church. Jefferson also approved similar treaties with the Wyandotte Indians in 1806, and the Cherokee Indians in 1807.
(4) In 1819, President Monroe, along with Congress, approved the grant of 640 acres to the rector of a Roman Catholic church in Detroit.
(5) In 1825, President John Quincy Adams, in a treaty with the Osage Indians, dedicated federal lands to a “missionary establishment” engaged in “teaching, civilizing and improving said Indians.”
(6) In 1833, Congress and President Jackson approved a grant of $3700 to build a church and a mill for the Kickapoo Indians.
(7) In 1838, President Van Buren, along with Congress, approved funds to help build a church for the Oneida Indians.
I’d have to see the details of the faith-based initiatives program to know whether these are similar to that.
Luke, The FF were fleeing the Church of England. I think they would object to mandatory church attendance because that would be too much like what they came from. But they obviously thought funding was OK as long as no particular denomination was favored. But who really knows? No one ever proposed that. Maybe they would go for it, but it seems like an unlikely hypothetical.
The issue is what we DO know. And we DO know there is no constitutional problem with funding Christian denominations. So, getting back the main issue, this is another reason why the Lemon Test is unconstitutional and judicial activism is a problem.
Blessings,
Frank
July 10th, 2010 at 12:47 pm
Dr. Turek,
Well, I’m glad we’ve gone from a Luke, please, it’s clear to I think they would object.
I just have never been convinced that the Frank Turek thinks form of argument is logically infallible. No offense, of course; the Luke thinks argument is just as poor, if not poorer.
You have still not answered the question of how forcing someone to give time is so different than forcing someone to give money. (It was so different in your mind that your first response was basically “Oh, please, that’s ridiculous.” (Though as I said, you’ve backed off that now; and If I misinterpreted your tone, since it’s easy to do with only text, please let me know.)
Frank Turek said:But they obviously thought funding was OK as long as no particular denomination was favored. (emphasis mine)
Sorry it’ not obvious to me, not at all. Examples 3 and 4 above clearly mention the Roman Catholic church. If anything, it’s obvious that they had no problem with funding particular denominations, at least according to your logic.
Frank Turek said:But who really knows?
You claim to, when you say things like “clearly” this is true because the founding fathers, who you yourself admit were inconsistent and fallible, did such and such.
Again, you claim to know that “obviously thought funding was OK as long as no particular denomination was favored” when this idea is contradicted by your own claims.
I don’t seek to argue about judicial activism right now (no time), but I largely agree with you, though I think that everyone likes to interpret the law to their own liking. (That is, it seems to me that any decision someone doesn’t like is “judicial activism” in their eyes.)
Let me give two quick examples of what I mean. There are many lawsuits now, cheered by the right, claiming that the government doesn’t have the right to force citizens to purchase a good. This is clearly contradicted by the actions of the FF, so according to your logic, is clearly constitutional. The right essentially wants the courts to create a law saying this: “the government shall make no law forcing citizens to purchase a good” when no such law is on the books, and your logic clearly shows it to be constitutional!
(FWIW, I do not know if such a thing is constitutional, and I am not at all convinced by your argument that it is. It does leave a bad taste in my mouth, but I understand the reasons for the law being necessary.)
Another example is your argument here. When I asked if a law requiring church attendance would be constitutional, you did not go to the law — you didn’t tell me how this “established religion,” “promoted establishment,” or “prohibited free exercise.” You first seemed to suggest that I should just naturally intone this conclusion or something (I should know it’s clear without seeing a reason why!). When pressed you asked me not to look at the constitution, but to look at history, the law in England and to basically be a mind reader (look at their motivations and what Frank Turek thinks they would object to.
Is that judicial restraint — trying to read minds instead of reading the law?
Thanks,
Luke
July 10th, 2010 at 12:49 pm
By the way, a quick yes or no question.
Based on your discussion with Nathan about the constitution and slavery and your comment about the FF going against their moral knowledge, do you agree with Thurgood Marshall’s assertion that the constitution as written, was a flawed document?
(This is an assertion Elana Kegan, who had clerked for Marshall took a lot of heat for from conservatives.)
Thanks,
Luke
July 10th, 2010 at 1:13 pm
One more thing (sorry).
Frank Turek said:The FF were fleeing the Church of England.
So all these men:
George Washington (born Virginia), Ben Franklin (born Boston), Thomas Jefferson (born Virginia), John Adams (born Massachusetts), James Madison (born Virginia), John Hancock (born Massachusetts), Sam Adams (born Boston)
who were all born in the New World, were all fleeing?
Thanks,
Luke
July 10th, 2010 at 3:58 pm
Luke,
The point was that no particular denomination was favored over another, so the FF gave to numerous denominations.
Fallible? See what I last wrote to Nathan.
What did Marshall mean by flawed? What was the context? If that slavery was OK, yes I agree. But the way to change that is with an amendment– not judicial activism– and that’s the way it was changed.
When I said “fleeing” I meant fleeing the law that one needed to be member of the Church of England, not that they were all born there. They were fleeing a form of government. Luke, I can’t continue this conversation if you insist on parsing every word in an unnatural over-literal sense. You need to give people the benefit of the doubt you may have rather than trying to play gotcha with everything said.
Blessings,
Frank
July 10th, 2010 at 4:50 pm
Sorry, I am not “trying to play gotcha.” I do often give you the benefit of the doubt.
Words do mean things though, and if we too often ignore those meanings, we also won’t be able to have a conversation.
Frank Turek said:They were fleeing the law that one needed to be member of the Church of England.
As I said, I was not trying to play gotcha. I was honestly unaware such a law existed in either Virginia or Massachusetts. Had I known this, I would have understood you perfectly. I just simply didn’t know and I’ll look into it when I get a chance.
Anyway, to the actual discussion:
I. As I said, unless we accept the assertion that A man cannot break a law he wrote then the fact that someone wrote law x and did y, does not mean that action y does not break law x. Do you accept this?
II. The fact that money was given to churches does not mean that the Lemon test is unconstitutional. As I said before, there can be many secular reasons for giving money to a church, and much secular benefit can come from it. You have provided no evidence that money given in your examples did not have a secular benefit, nor that the lawmakers saw no secular benefit in it. Therefore your conclusion that the Lemon test is unconstitutional, based simply on what you provided us here is not necessarily correct. Does that make sense?
III. On the idea of specific denominations: Given the data points you provided, the Catholic Church was the only recipient of funds for 22 years. You said money has to be given to different denominations, but what’s the time frame here? As long as more than one denomination gets money in, what a decade, then it is constitutional? 15 years? 20 years? 30 years? a century? maybe just 1 year? 3 month?
Can Catholic administrations (i.e. when the President is Catholic) give only to Catholic churches, since a Protestant president will surely get elected in the future?
Honestly, what are the rules you see here?
To just say this feel right to me and that feels wrong isn’t exactly a legal standard. What is the legal standard?
IV. Why is it constitutional for the government to force someone to give money to religious organizations, but not constitutional to force someone to give time to religious organizations?
V. What exact religion is established by a law which says “every citizen must attend church for at least one hour a week?”
Thanks and I sorry if it seemed like I was playing gotcha. (I do believe that words mean things and in precise argument. So maybe I am playing “what do you mean exactly,” but not “gotcha.”)
Luke
ps I was just asking a simple question if you thought it was flawed. I think we all agree it was. Any document (which addresses the rights of people) that allows human beings to be enslaved is flawed. It’s not that hard. It’s sad that this simple fact became a negative talking point. Honestly, who doesn’t see the thing as flawed?
July 10th, 2010 at 7:52 pm
I just wanted to point out, again, how misleading this comment is:
(2) In 1796, an act was passed by Congress under President Washington regulating the land given to the Society of United Brethren for “propagating the gospel among the heathen.” The act was extended under Presidents Adams and Jefferson.
The group was called “Society of United Brethren for Propogating The Gospel Among the Heathen.” That’s the name of the group. It’s not “Society of the United Brethren,” for the purposes of propogating the gospel among heathens. So #2 is blatantly and demonstrably incorrect.
July 11th, 2010 at 8:31 am
I know you are busy answering a variety of questions, Dr. Turek. I appreciate real life can get in the way of our internet discussions. *grin* But I’ve asked a simple question: What test do you propose courts use to interpret the Constitution regarding the First Amendment in lieu of Lemon?
July 11th, 2010 at 9:20 am
One would think a conservative would be against these kinds of money grants. It’s clearly singling out a specific group and elevating them above others. Plus, it’s just such a waste of money. If the church people around these native americans wanted them to have a church they could have taken their own money and built it . . . right?
July 11th, 2010 at 2:40 pm
Remember too, that none of this shows that the Lemon Test is unconstitutional, providing one can argue that ‘taming’ the Native Americans with religion was intended to have a secular purpose, which surely it did.
July 11th, 2010 at 5:20 pm
One would think a conservative would be against these kinds of money grants. It’s clearly singling out a specific group and elevating them above others. Plus, it’s just such a waste of money. If the church people around these native americans wanted them to have a church they could have taken their own money and built it . . . right?
Hmm….I hate to be facetious, but….you might be on to something with that. What about the people who didn’t want to have their income taken up by the government and given to these natives? Isn’t that a “redistribution of wealth?”
July 11th, 2010 at 5:58 pm
What about the people who didn’t want to have their income taken up by the government and given to these natives?
That and I’m sure there were natives that didn’t care about hearing about someone else’s god.
July 11th, 2010 at 11:44 pm
Tim,
I fail to see your point about the name of the group. Whatever it’s name was, it was given money by the government to spread the Gospel. No?
Nathan,
I agree with you that the spreading of Christianity has a civilizing effect which benefits everyone, so you could say that’s a secular purpose. But please tell me where in the Constitution one can find the “Lemon Test.” (Since you agree that spreading the Gospel has a civilizing effect, I suppose that you disagree with Dawkins who has called the teaching of Christianity “child abuse.” No?)
Toby,
The issue isn’t whether funding religious groups is a good idea or not, or whether conservatives should support it or not. The issue is whether or not it is Constitutional. The language of the document and the intended meaning expressed by the actions of FF shows that under certain conditions, it quite obviously is Constitutional.
DagoodS,
The test is the wording and intended meaning of Constitution itself. You don’t need another test. That’s why Jefferson– who didn’t have a hand in writing the Constitution but as a President took an oath to defend it and had to execute it– said, “On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.” –Thomas Jefferson (1743-1826), letter to Judge William Johnson, (from Monticello, June 12, 1823).
Luke,
I don’t have the time or interest to go through an endless series of hypotheticals. The point of my original post was the show the moral inconsistency of Elena Kagan and the dangers of judicial activism to a free people. Do you agree with those points?
With regard to your “secular purpose” and “what test” questions, see my responses to Nathan and DagoodS above.
Blessings,
Frank
July 12th, 2010 at 4:44 am
“Since you agree that spreading the Gospel has a civilizing effect, I suppose that you disagree with Dawkins who has called the teaching of Christianity “child abuse.” No?”
To clarify, I didn’t say that I AGREE that it has a civilising effect now, or that it HAD a civilising effect on the Native Americans. I was saying that certainly at the time it would have been easy to make a secular case to congress that the ‘heathen’ Native Americans would benefit from Christianity, and that the country as a whole would benefit from the Native Americans being more civilised.
Whether congress was right to be convinced is a separate issue. The point is that their actions cannot be used as a sign that they would disagree with the lemon test.
But please tell me where in the Constitution one can find the “Lemon Test.”
You mean the exact words? The word ‘trinity’ never appears in the bible, that doesn’t invalidate Catholicism. Neither does ‘wall of separation’ appear in the Constitution. But Jefferson clearly stated the words elsewhere in the famous letter.
I would have to go back to the court case that established the test. Haven’t the time right now. But you haven’t yet shown that it is unconstitutional. BTW, not sure that ‘no gays in the military’ is in the Constitution either.
Not sure I agree with Dawkins as you quote him either though. However, I seem to remember that he was specifically saying that it’s abusive to tell a five-year-old that he is in danger of burning for eternity in hell.
July 12th, 2010 at 5:58 am
I fail to see your point about the name of the group. Whatever it’s name was, it was given money by the government to spread the Gospel. No?
Actually, no. In the case of the act you specifically mentioned, they weren’t spreading anything, as most of the affected natives were already Catholic — the church and the money were things that the natives themselves requested.
July 12th, 2010 at 7:16 am
Sorry, again I’ve mucked up my italics:
But please tell me where in the Constitution one can find the “Lemon Test.”
You mean the exact words? The word ‘trinity’ never appears in the bible, that doesn’t invalidate Catholicism. Neither does ‘wall of separation’ appear in the Constitution. But Jefferson clearly stated the words elsewhere in the famous letter.
I would have to go back to the court case that established the test. Haven’t the time right now*. But you haven’t yet shown that it is unconstitutional. BTW, not sure that ‘no gays in the military’ is in the Constitution either.
Not sure I agree with Dawkins as you quote him either though. However, I seem to remember that he was specifically saying that it’s abusive to tell a five-year-old that he is in danger of burning for eternity in hell.
* Wiki on the Lemon Test gives us this:
Justice Hugo Black held,
The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion.
No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.
Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between church and State.”
Wiki also lists similar cases in the 19th Century where it was quite clear that the courts saw it as necessary to establish a secular justification.
By the way, Tim seemed to make a good point worth repeating here:
The “lemon test” is not some kind of law in itself. It’s an exercise to help people think around corners when interpreting the law — if there’s no secular purpose for a law, then chances are that it’s establishing a religion (or mandating a policy based on the tenets of a certain religion, which is also supporting the establishment of a religion and therefore unconstitutional). So the point isn’t that “it’s wrong if it has no secular purpose,” but rather that, if it has NO secular purpose, then there is no common legal ground on which to base it as a law.
July 12th, 2010 at 9:05 am
Nathan,
You wrote that Justice Hugo Black held,
“The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion.”
Black’s opinion is itself judicial activism because it contradicts the language, intent and actions of the FF: The founders never intended for the First Amendment to apply to state governments. There are two very simple facts to prove this:
First, many of the constitutions of the thirteen original states required their government officials to declare a personal faith in orthodox Christianity (although any one of numerous denominations were acceptable).
Second, in 1791, upon ratifying the First Amendment, five of the thirteen states had official state churches, and the state representatives didn’t run out and disestablish their churches after passing the First Amendment. The states certainly didn’t ratify a law that they immediately would be in violation of! They knew that the First Amendment did not apply to them; it only applied to the federal government (State officials could read; the amendment said: “Congress [i.e. the federal government] shall make no law. . .”). True, those five states with official churches gradually disestablished them over the years, but they did so voluntarily. Massachusetts was the last state to do so and that was in 1833, more than forty years later. Of course, one could cite a number of good reasons why states should not establish their own churches, but claiming that the First Amendment prohibits the practice is not one of them. That is, one may question the wisdom of a state religion, but no one should challenge its constitutionality.
Third, today’s “separation” doctrine and the “Lemon Test” are faulty because they are based on a wrong understanding of history. Read the historical narrative Rehnquist lays out here: http://www.law.cornell.edu/sup.....8_ZD2.html With regard to separation he concludes: “The “wall of separation between church and State” is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.”
With regard to Lemon he writes: “These difficulties arise because the Lemon test has no more grounding in the history of the First Amendment than does the wall theory upon which it rests. The three-part test represents a determined effort to craft a workable rule from a historically faulty doctrine; but the rule can only be as sound as the doctrine it attempts to service. The three-part test has simply not provided adequate standards for deciding Establishment Clause cases, as this Court has slowly come to realize. Even worse, the Lemon test has caused this Court to fracture into unworkable plurality opinions, see n. 6, supra, depending upon how each of the three factors applies to a certain state action. The results from our school services cases show the difficulty we have encountered in making the Lemon test yield principled results.” He then goes on to list inane and contradictory conclusions resulting from the Lemon test.
Yes, I understand the word Trinity is not the Bible. But the doctrine is taught several times. The same cannot be said about the Lemon test. In fact, history shows the Lemon test has no basis in the Constitution or history. If we want to abide by the principles in the Lemon test, then let’s vote on it. But let’s not have some unelected judge impose it on a free people. That’s all I’m saying.
Tim,
If the Indians were already Catholic, then 1) what’s the point of trying to civilize them with Catholicism? and 2) are you saying that it’s constitutional to give money to Catholics as long as they’re already Catholics? It’s still giving federal money to a religious group. What’s your point?
Blessings,
Frank
July 12th, 2010 at 10:14 am
First, many of the constitutions of the thirteen original states required their government officials to declare a personal faith in orthodox Christianity (although any one of numerous denominations were acceptable).
And do you think that this is a good idea? Do you think by doing this today that magically “things will get better.” I find that some christians have a very low opinion of humanity. Very low. So what would you hope to gain by state sponsored religion and religious funding (essentially the socialism you and other conservatives decry . . . unless it’s your idea)? Is it a magic cure for all of what you see as the ills of society? Carrying guns around wherever you want, lowering taxes, and spreading your word . . . whoops, I mean your god’s word.
She wants to correct what she sees as injustices from the bench. That should scare everyone. By whose standard is she declaring something injust?
Yes, yes, yes, she’s a godless liberal. You’d be making this same case for anyone Obama appoints.
C.S. Lewis put it this way, etc, etc, etc, You are, in fact, comparing them both with some Real Morality, admitting that there is such a thing as a real Right, independent of what people think, and that some people’s ideas get nearer to that real Right than others.
No. Not Real Morality. Each person’s personal opinion. Each person picks a side of an argument. Each individual sees the options and picks the one they feel the most comfortable with. That’s why one white person wouldn’t care if their brother married a black person and another would drag they black person out and beat the crap out of them “because it’s wrong!” We each make our own decisions about what we think is right and wrong. The idea of better or worse rests in the mind of the individual. There’s just personal opinion. This isn’t some grand thing beyond humanity because without humanity or living sentient beings their would be no Real Morality or Objective Morals. You think you know better than the rest of us here what is right and wrong. It’s somehow tied up in some bitterness about not wanting to see the world change at all and the fairy tales you’ve read and believed all of your life. The only thing that is certain is that the world will change. Belief in a god, belief in some abstract objective morals has done nothing to make the world a better place.
If there is no God, then everything is just a matter of opinion—kicking out of the military people who commit homosexual acts is no better or worse than keeping them in. In fact, if there is no God, Mother Teresa was not morally better than Hitler in any objective sense. In order for Mother Teresa’s behavior to be “better” than Hitler’s, there has to be an objective standard of “best” beyond both of them by which we can measure both of them.
All of this is your opinion. The idea of “true justice” is opinion. What makes something moral is how many people share that opinion. Like when it was immoral to even touch a woman on her period. Do you shake your wife’s hand or come in contact with her at all then? How immoral of you if you do. What a stupid opinion. Yet many probably shared it (some still do) and they think is perfectly, divinely moral. And that’s in the book you revere so much too! But those are mistaken aren’t they? History does not favor your argument for objective morals. My argument does.
July 12th, 2010 at 10:15 am
“With regard to separation he concludes: “The “wall of separation between church and State” is a metaphor based on bad history”
It’s a direct quote from Jefferson, whose meaning seems pretty clear to me. The lemon test is directly derived from that.
To be frank (no pun intended) the discussion seems to be going down a bit of a rabbit hole. Instead of debating the merits of Kagan, you’re going back decades, if not centuries, to question the acts of other judges. Kagan is continuing the precedents set by her precessors, which is surely how the law tends to work. Why pick Kagan out for doing this?
July 12th, 2010 at 10:55 am
Frank Turek wrote:Black’s opinion is itself judicial activism because it contradicts the language, intent and actions of the FF: The founders never intended for the First Amendment to apply to state governments.
The fourteenth amendment extends many of the constitutions protections (things the federal govt can’t do) to also apply to the states. I am not a constitutional lawyer, but I would think there’s a clear constitutional basis there that was not present at the time of the FF.
July 12th, 2010 at 11:08 am
Toby,
I don’t want to be accused by our host of playing “gotcha,” but how many people do you know who shake the hand of their spouse?
Husband: Good morning honey. You look particularly lovely this morning.
Husband extends hand for good morning handshake.
Wife: Why, thank you sir, and may I say your snoring was unusually quiet this night.
Wife clasps husbands hand tightly and shakes vigorously while maintaining piercing eye contact.
July 12th, 2010 at 12:03 pm
Frank Turek said:I don’t have the time
No worries, I understand.
Frank Turek said: or interest
Oh, now I’m just boring?
Frank Turek said: to go through an endless series of hypotheticals.
Like I said, I understand completely.
To be fair though, my points only contain one hypothetical (the others deal with either historical facts you brought up, or are questions of pure logic). That hypothetical is one you’ve answered twice now, and I’ve simply asked for the reason you used to ascertain that answer.
Frank Turek said:The point of my original post was the show the moral inconsistency of Elena Kagan and the dangers of judicial activism to a free people. Do you agree with those points?
I emailed you about this Saturday. Just, let me know what you think when you get a chance. (Though to be honest, I don’t know if I have time either, but as I said in my email, I liked the post.)
Thanks,
Luke
ps I just realized that my post did contain a hypothetical of Catholic administrations giving only to Catholic churches. So perhaps I included two. I don’t want to re-edit my own post, but I stand corrected.
July 12th, 2010 at 12:09 pm
Nathan,
You said at the time it would have been easy to make a secular case to congress that the ‘heathen’ Native Americans would benefit from Christianity, and that the country as a whole would benefit from the Native Americans being more civilised.
This is from a letter from George Washington to the (already mentioned) Society of the United Brethren for Propagating the
Gospel Among the Heathen (dated July, 1789):
it will be a desirable thing, for the protection of the Union, to cooperate, as far as the circumstances may conveniently admit, with the disinterested endeavors of your society to civilize and christianize the savages of the wilderness. (emphasis mine)
This clearly proves the Lemon test is constitutional.
July 12th, 2010 at 12:18 pm
Thanks for clearing that up Luke. Hopefully we can move on from that point now.
I think it was Ed Brayton who said “An activist judge is one who doesn’t agree with you”. That humorous remark aside, I think he writes well on constitutional matters and the intentions of the Founding Fathers.
July 12th, 2010 at 12:37 pm
Glad I could help Nathan.
May I just say that there is a lot of extremely tragic irony in the talk of “heathens” and “savages” when it comes to Native Americans?
I don’t want to look at individuals, but when we look at an amalgamation of the actors on each side, who were the “savages” really?
Luke
July 12th, 2010 at 2:49 pm
Thank you Dr. Turek, for your response to my question.
First, let me say, it is perfectly acceptable to disagree with the Lemon test. As noted, even Supreme Court Justices disagree with aspects of the test. What I was curious was whether you could propose an alternative.
Unfortunately, simply stating the “wording and the intended meaning” is insufficient. Simply put, we live in a different world than the writers of the Constitution, and what their “meaning” would be is not easy to determine. We need only look at this thread and the various statements by people before and after the ratification to see the lack of clarity.
“Congress shall make no law respecting an establishment of religion; or prohibiting the free exercise thereof…”
Think of the difficulty in determining these words’ meaning. What is “religion”? They were not anticipating religions with polygamy (Mormons), peyote (Native Americans) or kool-aid (James Jones). Is a law against polygamy or peyote use a prohibition on the free exercise of religion? How do we recognize what is a “religion”? Are we limited to only those religions in existence as of 1791?
And what is “respecting an establishment of religion”? (Note the qualifier—it is NOT “no law establishing a religion” but rather, “no law respecting an establishment of religion.”) Does that include only state-sponsored religions? What about preference for one, already established religion?
Curiously, the Constitution does not explicitly state the Supreme Court has the power of Judicial Review, so one could argue even your test is not constitutional. *grin*
But there was another reason I kept asking the question. I was attempting to figure out whether you had an alternative in mind, or you were simply against any test being used. I found it ironic, in a blog entry where you seem opposed to Judicial Activism, you were equally against the Lemon test.
The Lemon test is designed to avoid Judicial Activism. The American Judicial system operates by stare decisis–the principle that subsequent cases follow the precedents set by previous cases. The idea of “tests” (and there are other tests, like the “minimal contacts test” of Burger King) is to provide limits for subsequent courts (and lesser courts) in making similar decisions.
Rather than let each court determine each case by its own interpretation—a veritable cacophony of Judicial Activism!—courts are bound to follow determinations set by higher courts and previous decisions. We often read decisions saying, “We are bound by ____” where it is evident the court does not like the conclusion it must reach, but does so to follow the law.
The Lemon test is there to give lower courts and legislatures direction so that they can know how the Supreme Court would rule if the case ever reached there. It provides us consistency and a way to actually avoid judicial activism! (If a Judge did make a radical departure, we will appeal.) Otherwise every case would go to full trial and then, because the courts are not bound by stare decisis every case would be appealed because the loser would hope for another crack! Hope for another judge’s “interpretation” of the meaning.
Again, I fully appreciate you may not like Lemon (or other tests) but unless you have a better alternative, at least it keeps in check the very judicial activism you seem to be decrying!
July 12th, 2010 at 5:35 pm
Gentlemen,
Precedent is only valid if the precedent was decided properly in accordance with the Constitution. Citing a bad decision as evidence for your view doesn’t make your view true. If I cite Tim interpreting Nathan, but Tim interprets Nathan incorrectly, then I don’t make Tim’s interpretation true when I quote him. We must go back to Nathan’s original quote to get the real meaning.
The Lemon test may have been designed to avoid judicial activism, but it is activism itself. It’s not in the Constitution or stated anywhere in the writings of the founders. Luke’s quote above from Washington does not REQUIRE a secular purpose for such actions. In other words, I’m not saying that religious funding is unconstitutional if it has a secular purpose; I’m saying that Lemon’s REQUIREMENT that there be a secular purpose is judicial activism. Again, there might be wisdom in requiring a secular purpose (whatever that means), but that is the job for the legislature to enact not the courts.
If something in the Constitution that bears on a case is not clear, the proper procedure is to ask the legislature (elected by the people) for clarification, not for the judiciary to make up something. Agree? If not, why not?
Blessings,
Frank
July 12th, 2010 at 5:41 pm
DagoodS,
Thanks for posting. Let me add to what I said above about Lemon. You think it was intended to prevent JA. But it has done no such thing.
Here’s what Chief Justice Rehnquist (full citation in the link above) wrote about the impracticality and contradictory conclusions that have resulted from trying to follow the court-invented standard known as the Lemon test:
“The results from our school services cases show the difficulty we have encountered in making the Lemon test yield principled results.
For example, a State may lend to parochial school children geography textbooks [n7] that contain maps of the United States, but the State may not lend maps of the United States for use in geography class. [n8] A State may lend textbooks on American colonial history, but it may not lend a film on [p111] George Washington, or a film projector to show it in history class. A State may lend classroom workbooks, but may not lend workbooks in which the parochial school children write, thus rendering them nonreusable. [n9] A State may pay for bus transportation to religious schools, [n10] but may not pay for bus transportation from the parochial school to the public zoo or natural history museum for a field trip. [n11] A State may pay for diagnostic services conducted in the parochial school, but therapeutic services must be given in a different building; speech and hearing “services” conducted by the State inside the sectarian school are forbidden, Meek v. Pittenger, 421 U.S. 349, 367, 371 (1975), but the State may conduct speech and hearing diagnostic testing inside the sectarian school. Wolman, 433 U.S. at 241. Exceptional parochial school students may receive counseling, but it must take place outside of the parochial school, [n12] such as in a trailer parked down the street. Id. at 245. A State may give cash to a parochial school to pay for the administration of state-written tests and state-ordered reporting services, [n13] but it may not provide funds for teacher-prepared tests on secular subjects. [n14] Religious instruction may not be given in public school, [n15] but the public school may release students during the day for religion classes elsewhere, and may enforce attendance at those classes with its truancy laws. [n16]
These results violate the historically sound principle
that the Establishment Clause does not forbid governments . . . to [provide] general welfare under which benefits are distributed to private individuals, even though many of those individuals [p112] may elect to use those benefits in ways that “aid” religious instruction or worship.”
Blessings,
Frank
July 12th, 2010 at 5:47 pm
Nathan,
You wrote: “To be frank (no pun intended) the discussion seems to be going down a bit of a rabbit hole. Instead of debating the merits of Kagan, you’re going back decades, if not centuries, to question the acts of other judges. Kagan is continuing the precedents set by her precessors, which is surely how the law tends to work. Why pick Kagan out for doing this?”
I’m only discussing Kagan because she is up for confirmation. We have no practical recourse with the other judges. Kagan’s merits are partially determined by her judicial philosophy: does she believe she should faithfully apply existing laws to particular cases, or make laws up herself? And yes, we are going back centuries because that’s when the law originated. If the people want to change the law, then we can do so through the legislature or the amendment process. Don’t you agree that judges should not make law, that the people should?
Blessings,
Frank
July 12th, 2010 at 7:42 pm
Dr. Turek,
The problem is, judicial activism is required. You just don’t like the decision here. (As both Nathan and I have said, judicial activism is simply a judicial decision one doesn’t like.)
You claimed that my law requiring everyone to attend church is clearly unconstitutional. Yet such a law does not “respect the establishment of religion” nor does it impede on anyone’s ability to worship.
(Ask yourself: what establishment of religion is being respected by this law?)
By extension, you’ve said that forcing someone to give money to religion causes is fine, but forcing them to give their time is not.
It seems reasonable to me, then, that you think some test exists.
You just seem not to like the one we have established.
How is a court to rule on such a case without setting any sort of guidelines.
You told me for example that it is constitutional to give money to religious organizations as long as it goes to various denominations? How many? How often, Where is the line?
Anytime you, as a judge, decide a case and say anything on these matters you are setting up a precedent — which for many intents and purposes is a law — judicial activism.
I suppose a complete non-judicial-activism system is possible. The court could have said: Congress write a law clarifying what can and cannot be done with public money.?
Is this really desirable or even practical though? Think of how much trouble congress has handling our day to day business as a nation. Do you think they could handle hundreds of additional laws a year, laws which would by their nature be often politically touchy and bitterly contested? Would this really work?
Furthermore and much more importantly what would this do to Checks and Balances? Much of that system is something laid out by Marbury vs Madison, which setup large parts of the concept of judicial review in our country (instead of asking the congress to go do it).
If Congress gets to decide everything, they can for example write a law that says “up to 500 trillion a year may be given to the Southern Baptist Church each year, but any more would equal the establishment of a religion,” then congress has too much power and the whole idea of government as set up by the Founding Fathers is destroyed.
What is better? A court setting up guidelines for what Congress can and cannot do? Or Congress getting to decide what Congress can and cannot do?
The former is judicial activism, the latter is exactly what the founding fathers did not want.
Does that help?
Thanks,
Luke
July 13th, 2010 at 6:11 am
“does she believe she should faithfully apply existing laws to particular cases, or make laws up herself”
The lemon test counts as an existing law, no? So by applying it she is ‘faithfully applying existing laws’.
July 13th, 2010 at 7:12 am
“The lemon test counts as an existing law, no?”
No more than making up quotations from Nathan Barley qualifies them as true quotations.
July 13th, 2010 at 7:30 am
Sorry, you mean I should say ‘it has legal precedence’, rather than ‘it’s an existing law’?
I know you are calling the original decision into question, but it’s a bit of a stretch to call it ‘judicial activism’ when a judge calls on decades old precedence, which is what judges are supposed to do, even if you disagree with the original decision.
You can argue that all the judges should be attempting to overturn that precedence, but their failure to do so - or perhaps the fact that they have their own rebuttals to the arguments you quote from Rehnquist - doesn’t really sound like ‘judicial activism’. activism generally applies to CHANGING the status quo, not continuing it.
July 13th, 2010 at 7:33 am
By the way, here’s a longer quote from Ed Brayton, addressing the ‘where is that in the constitution’ question:
“If you do not understand the importance of the 9th amendment, you simply do not get the point of having a Bill of Rights in the first place, or the relationship between governmental authority and individual rights.
As I have written many times, the 9th amendment was adopted by the framers of the Bill of Rights specifically to prevent future governments from taking the exact position that conservatives today have taken — the idea that if a right is not specifically stated in the constitution, the government has the authority to do away with it“Where does the constitution mention that right?” The correct question, of course, is, “Where does the constitution give government the authority to take that right away?”
The rights we all have are, for all practical purposes, inexhaustible. One could not possibly make a complete list of them. The authorities the government has are, or should be, limited in both number and scope. That was the entire purpose of the constitution and, especially, the Bill of Rights.
July 13th, 2010 at 7:34 am
Luke,
No, judicial activism is not merely an opinion you don’t agree with. JA is when a court goes beyond the language and intent of an existing law to create a new law– when it takes up the role of a legislature.
Admittedly, there may arise difficulties in interpreting laws and getting legislative input. However, governing rightly is difficult and the extra effort prevents the tyranny of unelected judges getting too drunk with power. Lord Acton never said, power tends to purify.
To modify William Buckley’s observation, I’d rather be governed by the first 1,000 people in the Boston phone book than nine unelected justices on the Supreme Court (he said, the faculty of Harvard University).
At the end of the day, there is no system that will work without honest and moral public servants. That is why John Adams wrote, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” Bad people in power can always abuse good laws.
BTW, if you look up Marbury vs. Madison, I think you will find that the court granted itself the ability to review legislative acts, and President Jefferson thought it so illegitimate that he ignored the court’s decision. But that is a whole can of worms that would take us too far afield. I think we’ve beat this topic to death as it is.
Blessings,
Frank
July 13th, 2010 at 7:37 am
I’m going to give up trying to bold things, I always get it wrong. Somehow I cut out an important part of the quote in the middle:
The 9th amendment was adopted by the framers of the Bill of Rights specifically to prevent future governments from taking the exact position that conservatives today have taken — the idea that if a right is not specifically stated in the constitution, the government has the authority to do away with it. That was exactly the position that the framers were afraid would be adopted and Madison made clear that the 9th amendment was intended to prevent it from being taken.
Whenever a court upholds the assertion of an unenumerated right, conservatives ask the wrong question: “Where does the constitution mention that right?” The correct question, of course, is, “Where does the constitution give government the authority to take that right away?”
July 13th, 2010 at 7:53 am
Judicial activism is not merely an opinion you don’t agree with. JA is when a court goes beyond the language and intent of an existing law to create a new law– when it takes up the role of a legislature.
This is Ed Brayton’s extended discussion of the phrase ‘Judicial Activism’.
http://scienceblogs.com/dispat.....of_jud.php
I was going to also pick out a passage from it that I felt supported some point I was making, to quote below the link. But I don’t want to cherry pick one element of what strikes me as a well-balanced piece, so I’ll just recommend it. At least, I found it compelling, so I’d be interested in hearing if anyone thinks it is misleading my thinking.
July 13th, 2010 at 9:54 am
Luke, I enjoyed what you wrote. Dead on.
“Judicial Activism” is only accused when a court rules against you. (And this isn’t limited to the Supreme Court; sit in a family court for a day and you will hear a similar cry all day long from losing parties.)
Dr. Turek,
To demonstrate what Luke and Nathan are pointing out—can you tell us some “Judicial Activism” where you won, and you are equally affronted? Are you upset that Chief Justice Rehnquist relied upon the Lemon Test in Mueller v Allen for example? Or the dissenting opinion in County of Allegheny v ACLU which reflects payments toward proselytizing of a religion would inherently violate the First Amendment? (A dissent joined by Chief Justice Rehnquist.)
How about the Mojave Desert Cross? Did you think the lower courts were “Judicial Activists” (because they ruled against the cross) but the Supreme Court was not (because it ruled for the cross?) [And I should note that is not an entirely accurate description, but for our purposes, it will suffice.]
Frank Turek: … I’d rather be governed by the first 1,000 people in the Boston phone book than nine unelected justices on the Supreme Court…
Cute quip. Do you think those 1,000 people would not engage in Judicial Activism? Or look at it another way—would you rather have the first 1,000 people in the Dearborn, Michigan phone book be on the Supreme Court. (A predominant Muslim community.) Or how about the first 1,000 in the Salt Lake city phone book? Or how about the first 1,000 in the San Francisco phone book?
I agree we have reached the end of this rope. This is your blog; you may have the last word.
July 13th, 2010 at 10:26 am
Frank Turek said:JA is when a court goes beyond the language and intent of an existing law to create a new law
I think I’ve made a good argument that the courts often have to do this. Any supreme court decision on religious freedom for example, that gives any reason for either upholding a law or striking it down, that uses words different than “this law respects the establishment of religion,” even if they just add “because yada, yada, yada” is making “new law.” (The new law is “yada, yada, yada” is unconstitutional.)
I understand your point about the “intentions of the founders,” but your comment on Marbury vs Madison and Jefferson’s disagreement with it (about which you’re very right) illustrates much of the problem. It’s not as if the founders were one monolithic unit that agreed on everything and each of whom had the same intention.
In fact much of the Constitution and the Bill of Rights are the result of compromise. (The Bill of Rights itself was a compromise.)
I don’t think it’s two far out of line to say that the language of many amendments does not line up with the intentions of any Founding Father. (Say I want to order a olive oil, tomato and basil only pizza, but you want olive oil, peppers and chives, and we agree to order olive oil, tomatoes and peppers, the pizza we get is not representative of either of our intentions, it’s a compromise.
It makes me think of Christianity and the Bible. Look at how many different denominations we have because good and honest people find so many different interpretations of the same simple text. You consider almost all of these people, I’m sure, your brothers and sisters in Christ, despite these disagreements. I don’t think someone who reads Romans 9 differently than I do to be a heathen or a tyrant. I understand that these issues can be difficult, and that good people can disagree in good faith. I look at the text, at G-d and Jesus and His intentions and come to a conclusion, but I understand that others may reach a different conclusion without being evil.
When it comes to our civil law somebody has to do this job of interpretation, and the founders set up a system for it. If you don’t like the system, criticize it. Petition congress to change it. (Are lifetime appointments a good idea? I don’t know. If you don’t like them, work to change them. I will say the founders had reasons for setting it up this way. Would you really want Supreme Court justices to be elected, for example? Would corporate money and demagoguery really make them more impartial?)
Frank Turek said:[judicial activism occurs] when [the court] takes up the role of a legislature.
As I said though, someone has to say “this law fits / does not fit with the first amendment because…” Do you want that to be the legislature, the same people that make the law in the first place? Or do you want that to be some separate branch of government to serve as a check on the legislative branch?
Again we can go to the real world example of Heath Care Reform and the question of “does the govt have the right to force citizens to purchase a good?” This is a decision on which Ms. Kegan will likely have input.
(I’ve noted this before, but the FF did just this in their time.)
This is not directly mentioned in the constitution. So, no matter the decision:
“The government has the right to fore citizens to buy a good.”
“The government does not have the right to fore citizens to buy a good.”
it is a new law — judicial activism.
Would you rather the congress create this “law” or some separate branch of government which regulates what congress can do?
(Congress could have simply added language to HCR saying “by the way, this is constitutional.)
Thanks,
Luke
July 13th, 2010 at 10:32 am
Nathan,
It was perfectly fine for you to refer to the lemon test as “law.”
Though it may be incorrect in the most rigid and technical sense, it is simply the way we speak and is very widely accepted. Listed to any confirmation hearing and precedent as settled law is a linguistic formation that flies around the room unceasingly. Chief Justice Roberts, for example, referred to Roe v Wade as settled law several times during various hearings. (I just point that instance out because it stuck out in my mind; read 10 minutes of any hearing and I’d be surprised if you didn’t come across such usage.)
July 13th, 2010 at 3:05 pm
Yes, gentlemen, we’ve reached the end of the line on this thread. One final comment.
There is a legitimate debate on the legitimacy and extent of judicial review. And we can always discuss hypotheticals and actual cases where judicial activism might be highly debatable. But to say that difficult cases disprove the easy cases is a logical fallacy called “argument from the beard.” Just because we can’t determine at what precise time an unshaven face becomes a bearded face does not mean that one cannot clearly see the difference between a shaved face and a man with a full beard. The same is true with JA.
Getting back to the point of the column, it is clear judicial activism to say, for example, that one has a constitutional right to a dead full term baby. Abortion is not in the Constitution, but the right to life is.
As this link points out http://article.nationalreview......n-w-coffin (which I referenced in the column), Elena Kagan actually lied about a medical opinion in order to prevent the partial birth abortion ban. If you don’t think that lying in order to put your policy preferences into a supreme court case is not judicial activism, I can’t help you.
Thanks for the conversation.
Blessings,
Frank
July 13th, 2010 at 3:51 pm
Dr. Turek,
Concerning the topic of Elena Kegan lying, I am not so sure what she lied about. Can you please clarify?
I have read the article twice, and the only thing I see as a direct falsehood is actually something written in the posted article itself!
(Though it seems that judge Kopf statement about the fact that the ACOG did not consult anyone is not technically correct. It is very likely and possible that the language was simply unclear and the intended meaning was that there were no consultations about the medical facts.)
Here is what happened: The ACOG, did not favor the ban and believed that such a decision should be left to a woman, her family and her doctor. They wrote a draft statement expressing this view.
There was concern, however, that because of the language used, it could be taken to say that the ACOG’s conclusion was the opposite of their belief.
(That is the language was seen by many as unclear — as arguing against what it was arguing for.)
Elena Kegan suggested other wording options. One of these was used.
The article you linked is flat out wrong and false to claim the initial language did not include the sentence in question, but “instead, it said…”
The language that was supposedly replaced (that is, the new sentence was included instead of it, is still in the final statement.
Here is the draft statement:
Terminating a pregnancy is indicated in some circumstances to save the life or preserve the health of the mother. Intact D&X is one of the methods available in some of these situations. However, a select panel convened by ACOG could identify no circumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman. Notwithstanding this conclusion, ACOG strongly believes that decision about medical treatment must be made by the doctor, in consultation with the patient, based upon the woman’s particular circumstances. The potential exists that legislation prohibiting specific medical practices, such as intact D&X, may outlaw techniques that are critical to the lives and health of American women. The intervention of legislative bodies into medical decision making is inappropriate, ill advised, and potentially dangerous.
Here is the final statement:
Terminating a pregnancy is performed in some circumstances to save the life or preserve the health of the mother. Intact D&X is one of the methods available in some of these situations. A select panel convened by ACOG could identify no circumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman. An intact D&X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman’s particular circumstances can make this decision. The potential exists that legislation prohibiting specific medical practices, such as intact D&X, may outlaw techniques that are critical to the lives and health of American women. The intervention of legislative bodies into medical decision making is inappropriate, ill advised, and dangerous.
I bolded the words which are different between the two statements. I can see no difference in meaning between the two, which I take to be the accusation we’re making.
The article is clearly wrong to say one statement appeared INSTEAD of another.
The AGOC clearly believed that a ban was a bad idea because it would insert the government between a woman and her doctor. If it saw an intact D&X as never medically useful, why would they maintain (in both the final and draft statement) that “The potential exists that legislation prohibiting specific medical practices, such as intact D&X, may outlaw techniques that are critical to the lives and health of American women.”
Can you point out to me where Ms. Kegan lied or even misrepresented the medical body’s view, based on the facts in the linked article?
If you cannot I urge you to issue a correction! If you can (based on the facts of this case as you and the article presented them; I am sure Ms. Kegan has lied at some point about something, just as I have), I will gladly post here that I was wrong and donate money to your ministry.
Thanks,
Luke
July 13th, 2010 at 4:11 pm
To simplify what happened here:
The accusation in the article is that the medical body in question came out with a draft statement which said that the select ACOG panel “could identify no circumstances under which this procedure . . . would be the only option to save the life or preserve the health of the woman.”
The article accuses that after Ms. Kegan’s involvement the statement instead said: that the controversial abortion procedure “might be” the best method “in a particular circumstance.”
The full draft statement (before any language suggested by Ms. Kegan) also included the statement that : The potential exists that legislation prohibiting specific medical practices, such as intact D&X, may outlaw techniques that are critical to the lives and health of American women.
In other words the panel said they couldn’t think of any particular case where this might be necessary, but such cases may well exist, therefore a ban might “outlaw techniques that are critical.”
Obviously, they thought such a possibility existed. The inserted language simply restates that view in different (and perhaps more clear) terms.
Nowhere in this case, as far as I can see, did Ms. Kegan lie or misrepresent the view of the ACOG select panel, nor did she somehow coerce them to change their view of the procedure — their view did not actually change.
Thanks,
Luke
July 13th, 2010 at 4:29 pm
Luke,
Notice the wording in the first sentences of each statement:
The Draft: Terminating a pregnancy is INDICATED in some circumstances to save the life or preserve the health of the mother.
Kagan’s Revision: Terminating a pregnancy is PERFORMED in some circumstances to save the life or preserve the health of the mother.
Notice any difference? Kagan said D&X is preformed for that reason, when ACOG was saying it is not really performed for that reason but only indicated as such. That’s why they go on to say that they could identify no circumstance where D&X was necessary. Yet Kagan then said exactly the opposite…. it may be the “best” way to save the life or preserve the health of the mother. That’s a lie.
Besides, think about it Luke. How does a dead baby improve the health or life of the mother? A baby that far a long can be delivered easily alive by cesarean section, certainly less risky than a D&X.
Please keep your money. Hope your family is well.
Blessings,
Frank
July 13th, 2010 at 4:38 pm
But still Frank, it appears Luke is correct to say:
“The article is clearly wrong to say one statement appeared INSTEAD of another”
July 13th, 2010 at 4:59 pm
What???? The change in the one word changes the meaning completely!
If none of you can admit clear facts, I’m wasting my time.
I’m done with this thread.
Have a good day gentlemen,
Blessings,
Frank
July 13th, 2010 at 5:41 pm
Dr. Turek,
I made a statement, and I will keep my word.
I completely missed the difference in wording there. It was not intentional.
That said, here is one key fact:
If you look as Ms. Kegan’s notes, where she marks and suggest the change, the change of “indicated” to “performed” is NOT mentioned. The word “indicated” appears as it does, and no notes or other markings by Ms. Kegan reference it.
The suggested language can not and is not linked to Ms. Kegan based on the evidence you presented.
Furthermore, the practical difference is very small in my view. If a doctor indicates that a procedure should be performed, surely it is sometimes (and realistically often) performed.
Do you think it incorrect/dishonest to say that partial birth abortions are performed to save the life of the mother?
I think the clear fact is that they are. I can’t imagine a doctor performing this procedure when he believes there is no such necessity. (Though there may be one or two sociopaths out there.)
The fact that this is the true and honest reason a doctor and mother choose such a course does not mean that the chosen course was the only possible or even the best course. It is just a simple fact that procedure x was performed to achieve goal y. That is a statement of fact, not of judgment.
So why was to panel wrong to say that partial birth abortions are performed for this reason? How in any way is this a lie?
Further still, I do not see how the meaning/intention of the statement is changed by any of this. This is how I understand, so please let me know where I am wrong.
The draft report basically said: “We can’t think of any reason this would be necessary. But it should not be outlawed because it “may” be necessary and therefore the proposed bill “may outlaw techniques that are critical to the lives and health of American women.” The final choice should rest with a woman and her doctor, not the government.”
(If they truly believed that no such case could EVER be possible — that the procedure was useless –, why would they state that the procedure may be critical to the lives and health of women?)
The final statement basically said: “We can’t think of any reason this would be necessary. That said, there may be particular cases where the procedure is the best option to save the life of the mother. Therefore, it should not be outlawed because it “may” be necessary and therefore the proposed bill “may outlaw techniques that are critical to the lives and health of American women.”
I fail to see:
1. How one statement is different from the other in meaning.
2. Where Ms. Kegan lied.
Some other notes for clarity:
Dr Turek said:ACOG was saying it is not really performed for that reason but only indicated as such.
I completely disagree. Why was the procedure performed, then?
Let me give an example. Say I want to turn on the light in my living room. I can either flip the switch, or I can buy a generator, splice the wires, hook the generator up to the lightbulb and bask in the glow.
You may say “I can’t think of any reason to go out, buy a generator, etc, when trying to turn on a light.”
It does not follow that my purchase of the generator and splicing job was not an attempt to turn on the light.
Stupid? Yeah. Unnecessary? Yeah.
It’s still the reason I did it.
If you ask each doctor who has performed one of these why it was done, and the doctor answers honestly, do you really believe that the answer is never “to save the life of the mother?”
Why are doctors doing this then? Is every doctor that has ever done this simply a psychopath? Why would a panel of doctors want to keep it legal? Because they want to enable psychopath doctors?
Frank Turek said:Yet Kagan then said exactly the opposite…. it may be the “best” way to save the life or preserve the health of the mother. That’s a lie.
No, that is exactly what the original statement said.
If the committee did not believe it may be necessary to preserve the life or health of the mother why would they say that outlawing the procedure “may outlaw techniques that are critical to the lives and health of American women?”
Clearly they believed such a case is possible, that’s why they opposed the ban! They just couldn’t think of a possible case.
Because I cannot think of the solution to a equation, does not mean that I believe no solution exists.
You are jumping to such a conclusion, and there is no logical basis for it!
Do you understand what I mean?
I am willing to be convinced of your position, but thus far, I am not (and am less convinced as I research). I actually assumed you were right until you re-posted the article and I decided to click on it.
Frank Turek said:How does a dead baby improve the health or life of the mother? A baby that far a long can be delivered easily alive by cesarean section, certainly less risky than a D&X.
I suppose I am like the committee in this case. I agree with you, I can’t think of why it would be necessary. You know how I feel about the issue of abortion, so you’re not making an argument I don’t know. That said, I, like the committee, admit that some case may exist or may occur somehow, somewhere, I just can’t think of what the exact circumstances would be.
(Maybe, if the mother is in the middle of delivering, an a c-section is no longer feasible, when the mother starts bleeding dangerously. Like I said, I am not a doctor, I don’t know what the circumstances would be, but I likewise do not know that they do not exist.
Thanks,
Luke
July 13th, 2010 at 5:47 pm
Frank Turek wrote:If none of you can admit clear facts, I’m wasting my time.
It’s my turn to say “What?”
What clear facts am I not admitting to?
Please read my previous post, but what evidence do you have that Ms. Kegan had any impact with the one word change? “The change in the one word” which “changes the meaning completely!”
None has been presented so far (unless I am mistaken, which I will gladly admit if it’s true). If this is your issue with the statement, then based on the evidence presented you are simple mistaken about the connection to Ms. Kegan. (I don’t think this is malicious, just an honest mistake.)
Again, please present evidence that this is “Kegan’s revision” or correct the record.
I will gladly concede any clear facts you present.
Thanks,
Luke
July 13th, 2010 at 6:06 pm
Dr. Turek,
FWIW, I believe abortion to be almost always immoral, just as you do, and I do not support Ms. Kegan’s nomination to the court, just as you do not. Trust me, I am open to everything you’re saying, and I am willing to accept any clear facts you present. I just haven’t seen you present anything which is clear to me. I will reject any accusation that I am somehow volitionally rejecting the truth.
Luke
July 13th, 2010 at 8:34 pm
Thank you, everyone, this thread has been an absolute joy to ingest. Like swilling down a fiberglass laced tumbler full of battery acid. A simultaneously discordant, tragic, (apparently) unintentionally hysterical series of swings and misses on the part of all.
Truly, in all of the attempts made by our courageous protagonist, Dr. Turek, this must assuredly be one of the most frustrating. Part of me was actually thinking, “Awe, go ahead and agree w/ them - it’ll be easier in the end- seeing as how they will never accede to the absurdity of their argument(s), nay, even to the destruction of the thread itself.”
weak
July 14th, 2010 at 12:47 am
I’m done with this thread.
Have a good day gentlemen,
A while back you were considering shutting down comments here. I can understand that. It seems that the only people that read this are atheists who’ll never come around to your way of thinking and a few x-tians that agree with you (but make you cringe with most everything they say). I say shut’em down and stick with townhall.com where you’re preaching to the choir. Have you read the comments there? Those people make Mark 13:31 seem like a tame sage what with their, “Our president is an illegal alien” chatter.
I mean what do we atheists get from coming here and commenting? If I were you I’d be terribly sad to think that if the atheists left this blog then all that would be left is Mark (and his unconfirmed multiple post name personalities).
I don’t know why I came here in the first place. Maybe the debates with hitchen’s brought up my awareness of you and the sheer audacity of a line by you in a youtube video where you say, “If the the new testament’s true, then the old testament’s true.” I don’t know. I don’t know what Luke or Tim or Nathan or Dagoods are getting out of this. No one here will change any other person’s mind that also comes here. Maybe we just like to argue. Maybe we’re filling a need for debate that we don’t have with people in our actual lives. I ask myself what I have learned coming here and all I come up with is that people are inflexible. I think we’re all expecting to put something out here that makes someone stop in there tracks and say, “Gee, that’s a good point.” It’s not going to happen. We’re fooling ourselves here.
I say shut it down Frank. You’re a busy guy what with making money talking about god and writing books and you’re wasting your time reading the LONG diatribes we break out here. You’ve written books about your ideas and ideas you agree with and you’re wasting your time responding to our posts even if you’re just cutting and pasting.
Sure, you’ll probably keep this up, and I’ll probably keep posting my often off-topic and tangental questions/responses because I don’t have a x-tian around that’ll respond with any thing better than a trumped up version of the “mysterious ways” response (because most don’t give a turd because we’re all so inflexible).
What are your thoughts, Frank? Luke, Tim, guys? your thoughts? Are we wasting our time here?
July 14th, 2010 at 9:32 am
I enjoy these discussions because I often learn new information. Both from comments made by persons of all points of view, and my own research to confirm/deny what is being said.
Toby R., I would agree it is as rare as hen’s teeth to see the people actually engaged in these interactions change their mind. But I perpetually wonder about the lurkers. I know, going through my own deconversion, I read 1,000’s of such threads—how many people are reading what is written (and perhaps doing their confirmation) and never comment a single syllable?
It seems every time I figure I’ve had enough, I get some comment or e-mail from a person who is struggling, and they indicate their appreciation for my interplay with theists. As recent as this month.
July 14th, 2010 at 9:44 am
Mark,
I have a different take. I think it’s quite an accomplishment that we’ve gone through thousands of words here and while we’ve had strong disagreement, it’s always been respectful.
No one has called anyone else stupid, or an idiot, or terrorist lover or a Nazi. With the discourse that we often hear these days (kids these days!) it’s nice to see and one of the reasons I like this blog.
I also learn a lot. My view on how the founding fathers interacted with religion in their capacity as leaders has actually changed a lot because of the information presented on this thread, and the subsequent research I’ve done. I’ve learned some interesting things about partial birth abortion. I’ve learned some things about the history of religion and religious persecution in England (I’m still trying to find a good reference for Dr. Turek’s mention of laws requiring Church of England membership in Virginia and Massachusetts… if anyone can help, but I’ve read lots of interesting things that are tangentially related.)
As I said in another thread, I don’t need to spend much more time here. I actually didn’t even visit the site for a while, then somehow got caught up in this thread.
I don’t know so much that people are willfully inflexible, but I think a lot of people suffer from cognitive dissonance.
Anyway, I do appreciate a frank exchange of ideas without the ad hominem and insults.
Luke
July 14th, 2010 at 4:44 pm
Speaking of learning things because of these discussions, here ere are are some interesting bits from a Harper’s article about the abortion procedure we’re discussing. (Harper’s: Gambling with Abortion)
(If you chose to read the whole article, I will warn you that parts are — or were for me — extremely difficult to read.)
(quotations italicized, my comments standard, all emphasis mine)
The Partial-Birth Abortion Ban does not prohibit what most people think it prohibits. It is not a late-abortion law.
Meaning this ban makes no input whatsoever about whether it is legal to kill a 6 month old baby, a 3 month old baby or an 8 and a half month old baby. It just says, hey, if you’re going to kill a 6 month old baby, here’s how you can and can’t do it.
Defending the Partial-Birth Abortion Ban in court, as teams of Justice Department lawyers were dispatched this spring and summer to do, requires arguing to judges that pulling a fetus from a woman’s body in dismembered pieces is legal, medically acceptable, and safe; but that pulling a fetus out intact, so that if the woman wishes the fetus can be wrapped in a blanket and handed to her, is appropriately punishable by a fine, or up to two years’ imprisonment, or both.
This seems twisted and almost backward to me. As sickening as a intact DNX procedure may be, the other option is no better, and perhaps worse. (I have a hard time saying this, it’s not easy to judge which of two bad things is worse.)
Anyway, I’ve reached a point where that’s all I can read for now… Anyway, there’s some information that I did not know, so I thought I would share.
July 14th, 2010 at 4:45 pm
Sorry my reference to ages were not an attempt at a rhetorical upper hand. It was just stream of consciousness thought. I obviously mean gestational ages.