Newsies...

[elfs]

Hey, technoshaman, check out The Language Police, a new book about how school textbooks are authorized and written in the United States. Various textbook approval committees have banned stereotypes such as "whites living in affluent neighborhoods," or "boys expressing anger"; others have forbidden "snowman" and "forefather" on the grounds that they're sexist. One parent successfully got her daughter's grade overturned on the grounds that, since she lived in Chicago, she was unfairly disadvantaged by a writing assignment that asked her to imagine life on the ocean.

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Ugh. Someone tell me that multiculturalism deserves a snowflakes's lifespan in a cyclotron after they read this.

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Bwahahaha. Al Qaeda tells the boys back home, "Yeah, we caused the U.S. blackout. Don't pay attention to the news from the U.S. There was looting in the streets. New York now looks like Bagdhad."

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The Baptist Press is reporting that Alan Keyes has spoken in defense of Roy Moore's Ten Commandments Monument, claiming that the First Amendment clause, as it is written, applies only to the Federal Government and not the states, and that states are free to implement whatever religious oaths and tests that they deem acceptable, to authorize state churches, and to make religious statements.

Someone remind Keyes of the following very important words:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

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A Norwegian man who discovered his friends were throwing him a surprise party decided to turn the tables and surprise them by lighting off his shotgun into the air. But he tripped and shot six of his friends instead. A likely excuse.

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The Lord works in mysterious ways. At least, that's what's being said about the death of Hitoshi Nikaidoh, who was decaptitated in a freak elevator accident at St. Joseph Hospital in Texas just days before he was due to be sent to Africa as part of a Christian Mission.

Comments

Have to agree, actually

[(Anonymous)]

"The Baptist Press is reporting that Alan Keyes has spoken in defense of Roy Moore's Ten Commandments Monument, claiming that the First Amendment clause, as it is written, applies only to the Federal Government and not the states"

Speaking as someone who is firmly in support of separation of church and state, I'm forced to agree with Keyes on this. Look at the phrasing of the first amendment: "Congress shall make no law..." Now look at the others: "The right...shall not be infringed," "the right...shall be preserved."

Why do the other amendments speak about the preservation of rights, while the separation clause speaks specifically about what Congress is allowed (and not allowed) to do? It seems clear to me that the framers intended religion to be a state issue, not a federal one.

Not that it matters, since the monument is still in blatant violation of Alabama's constitution.

Jeremy

Re: Have to agree, actually

[elfs.livejournal.com]

And I have to disagree. The Fourteenth Amendement was written (and ratified by the States) to specifically address this issue: constitutional specifications apply to state and local governments. There's no priority here, and there's nothing that states that because the 14th came a century after the first that it makes a difference. A century of case law since backs this view, and Keyes, if he wants to make his case, will have to do it with The Third Box of Democracy.

Re: Have to agree, actually

[(Anonymous)]

As much as I wish it did, the separation clause does not explicitly grant any right to religious freedom per se, it simply restricts the federal legislature. As such, I have difficulty seeing what "trickles down" due to the fourteenth amendment.

I can't argue with the fact that case law is in your favor (and on a personal level, I am very glad it is). But Keyes' statement was about the first amendment as originally written, and that's what I was agreeing with.

Jeremy

[wendor.livejournal.com]

OK, so now that we all remember the 14th Amendment perhaps you would care to quote some portion of the Constitution detailing the "privileges or immunities" that would be "abridged"?

Congratulations....you've now jumped firmly onto the "slippery slope" of disregarding what the Constitution actually says in favor of what you want it to say (usually phrased as "what the framers obviously intended")

Despite the fact that I greatly prefer a "Separation of Church and State" I have to admit that it is as much a legal fiction as the "Right to Privacy". Nowhere in the Constitution is any such separation specified beyond the two specific restrictions on the US Congress and the clause that religious tests can not be a requirement for elected office. "Separation of Church and State" is based on Jefferson's 1802 letter to the Danbury Baptist Association...but since the President is not allowed to alter the Constitution, legally it was just an expression of his personal opinion. Unfortunately, people have seized upon it as justification for deciding that the Constitution "meant" something other than what it actually said.

I decided a long time ago that I can't condemn the government for "interpreting" the Constitution is ways that harm me if I'm also supporting them "interpreting" it in ways that benefit me. Either we allow the government to "interpret" the Constitution any way they please (effectively abandoning the Constitution) or we stick to what it actually says. If there is some protection we feel the people should have, but isn't in there (separation, privacy, etc.) then we should follow the constitutionally defined process for amending it.

Re: Have to agree, actually

[wendor.livejournal.com]

"constitutional specifications apply to state and local governments"

I beg your pardon?

I think you're getting real heavily into "loose interpretation" here.

1. The 14th Amendment makes no mention of local government at all....only State.

2. The 14th Amendment places specific restrictions on the States...if it were intended to cover all constitutional specifications...it would have said so.

3. The 1st Amendment places restrictions on Congress...it does not grant privileges to individuals.

Sorry, but I think you're still on "what I want it to say" rather than "what it actually says"

Re: Have to agree, actually

[damiana-swan.livejournal.com]

I may be completely misremembering here, but isn't the hierarchy that any rights/responsibilities not specifically reserved for the federal government devolve to state or local governments, and anything not reserved for the state or local governments automatically devolve to the individual?

And don't most (if not all) state constitutions include a clause specifying separation of church and state?

And, isn't Moore a federal judge anyway, and isn't the monument at the federal courthouse?

Re: Have to agree, actually

[(Anonymous)]

I may be completely misremembering here, but isn't the hierarchy that any rights/responsibilities not specifically reserved for the federal government devolve to state or local governments, and anything not reserved for the state or local governments automatically devolve to the individual?

Sounds good to me.

And don't most (if not all) state constitutions include a clause specifying separation of church and state?

Yep, and I agree the monument is in violation of the Alabama constitution; that's why I think it should be removed. Or I should say, that's the legal reason it should be removed.

And, isn't Moore a federal judge anyway, and isn't the monument at the federal courthouse?

No, he's the state chief justice, and it's a state courthouse.

Jeremy

Re: Have to agree, actually

[wendor.livejournal.com]

Moore is the Chief Justice of the Alabama Supreme Court and the monument is at the Alabama State Judicial Building.

The order to remove it was a Federal Court order issued by District Judge Myron Thompson. The order was upheld by the 11th U.S. Circuit Court of Appeals on the grounds that "the Ten Commandments display is a blatant violation of the First Amendment principle of church-state separation"

Note that it is not a violation of the First Amendment itself.....so apparently the court is ruling that it doesn't violate the law.....it violates the "principle" that they feel is behind the law.

Since the First Amendment says nothing about what State government officials can do....the display is not a violation of the First Amendment. As Elf pointed out, the Fourteenth Amendment covers State governments....but no one has explained yet how the display abridges the privileges or immunities of citizens of the United States in any way whatsoever.

It's a really scary situation when the Federal government threatens to fine or jail the Chief Justice of a State Supreme Court....but can't show any actual law being broken.

I wonder if those who support the removal of the monument by force would feel the same if the Federal Government arrested them....not for breaking the law, but for violating a "principle" not actually spelled out in law.

Re: Have to agree, actually

[wendor.livejournal.com]

It would be a matter of debate whether or not the display is even a violation of the State Constitution in Alabama.

The clause in question would be: "SECTION 3
Religious freedom.
That no religion shall be established by law; that no preference shall be given by law to any religious sect, society, denomination, or mode of worship; that no one shall be compelled by law to attend any place of worship; nor to pay any tithes, taxes, or other rate for building or repairing any place of worship, or for maintaining any minister or ministry; that no religious test shall be required as a qualification to any office or public trust under this state; and that the civil rights, privileges, and capacities of any citizen shall not be in any manner affected by his religious principles."

The only portion that could apply in this case would be "...that no preference shall be given by law to any religious sect, society, denomination, or mode of worship..."

The question would be whether the display is preference given by law...especially since Moore has said that he is open to displays by any other religious group who asks.

Re: Have to agree, actually

[(Anonymous)]

Nah, it's also the part about taxes being used to maintain a minister or ministry. When Moore is using the resources of his office to promote the Judeo-Christian religion, that's exactly what's going on.

Jeremy

Re: Have to agree, actually

[wendor.livejournal.com]

Ok, I'll buy that angle.

So that makes sufficient grounds to act on the matter locally in Alabama.

The Federal Courts still have no jurisdiction.

Re: Have to agree, actually

[elfs.livejournal.com]

Hmm... quote-mining is something creationists are usually guilty of. The ruling specifically states, "Prominent displays of the Ten Commandments on government grounds have been held to violate the Establishment Clause." (9th Circuit ruling, page 43, citing cases upheld by the Sixth and Seventh Circuits, all of which have been refused further hearings by the Supreme Court).

It's not just the principle of the thing. When Moore says that the Ten Commandments "aren't religion, they're just about God" and so aren't violating the First Amendment or the Alabama Constitution, he's clearly weaseling in the worst way.

Read it yourself. It's a PDF. (http://www.ca11.uscourts.gov/ops/200216708.pdf)

Re: Have to agree, actually

[wendor.livejournal.com]

"Prominent displays of the Ten Commandments on government grounds have been held to violate the Establishment Clause."

Well, let's see....the clause states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Since that clause specifies "Congress" it does not apply to Moore at all unless they are extending it to include "principles" beyond the written law.

Now the Court claims that the Due Process clause of the Fourteenth Amendment means that the First Amendment restrictions apply directly to the State as well (section II of the ruling)....a preposterous claim completely contradicted by the actual text of the Fourteenth Amendment. Even if this were granted the text of the First Amendment spells out what the restrictions are and the display violates neither of them.

So while these displays have been "held" to violate the Establishment Clause...the fact is THEY DO NOT. (read them)

The Court bases it's decision not on the law, but on an "interpretation" beyond the law (section V of the ruling). They openly admit that the Constitution has NO prohibition applicable to this case....but claim that it is prohibited by the Supreme Court's "understanding of its general meaning"

Since the Court is upholding an action being made illegal, not by passage of law by elected representatives of the people, but merely by declaration of opinion by at least 5 of 9 people (note that there is no legal challenge allowed to that opinion, nor any recourse against those who issue it)....we may as well kiss the Constitution goodbye.

We have now allowed 5 people to add content to, or remove content from the Constitution at will, to make any action they disapprove of illegal without the consent of the governed and without course of appeal. As I said before, I can't wait to see the look on people's faces when the same kind of "opinion" is used to their detriment instead. (The Supreme Court could issue an opinion tomorrow that having blond hair, being gay, or having children out of wedlock is a violation of the Constitution as they understand it....and there would be no legal recourse whatsoever....and it would be just as "legal" as this ruling)

Sorry, but I'd prefer to keep the Constitution as the law of the land rather then replacing it with "the unchallengeable whims and opinions" of a few people.

Re: Have to agree, actually

[(Anonymous)]

Just to play devil's advocate, keep in mind that it is the Constitution itself that gives the Supreme Court the final word on what it means. Rejecting their rulings requires you to ignore parts of the Constitution, the exact same thing you accuse them of doing. Like it or not, stare decisis is the way things work in this country.

Jeremy

Re: Have to agree, actually

[wendor.livejournal.com]

That's why I'm in favor of an Amendment to correct this gap in the checks and balances system.

There needs to be some counter to the absolute authority of the Supreme Court.

The current situation is way too similar to most religions.....we have this book, and it has the rules in it....but you don't get to use the book or its rules....you have to live by what WE say the rules say (no matter how obviously we contradict what's written)...and oh yeah, you have no alternative but to accept our interpretation.

[lisakit.livejournal.com]

claiming that the First Amendment clause, as it is written, applies only to the Federal Government and not the states,

OK. I will try to refrain from going on a rant here. One of the first things we learn in the *Introduction* to Law class is that the highest law in the land is the US Constitution. States must model their constitutions and laws in such a way that they do not contradict it. County must not contradict either State or Federal, and City must not contradict any of the above.

I do believe in State Sovereignty, but the federal government does serve a purpose and the US constitution is the ultimate authority, the *highest* law of the land.

Where does this guy get off?!?

Re: Have to agree, actually

[lisakit.livejournal.com]

As a paralegal I cannot give legal advice, consult a lawyer. (besides, I'm still a student)

stare decisis: To stand by that which was decided. Rule by which common law courts "are slow to interfere with principles announced in the former decisions and often uphold them even though they would decide otherwise were the question a new one." 156 P.2d 340, 345. "Although [stare decisis] is not inviolable, our judicial system demands that it be overturned only on a showing of good cause. Where such a good cause is not shown, it will not be repudiated." 298 U.S. 38, 94. See precedent.
- Barron's Law Dictionary, p.483-484

Precedent: A previously decided case which is recognized as authority for the disposition of future cases. A precedent may involve a novel question of common law or it may involve an interpretation of a statute.
- Barron's Law Dictionary, p.382


Yes, this *is* the way our legal system operates. This is why lawyers must be very good at finding cases similar to the one they are working on. Precedent creates law, and no court can go against precedent without a showing of good cause. This is to keep an individual judge from abusing his/her authority.

You are correct that creating new statutory law (whether at the local, state or federal level) is a good way to quickly change the law. However, if a statute is grossly contradictory to existing precedent it could get removed when contested. It's a very complex system, but the more I learn about it the more I see just how well it really does work.

Citing my authority

[lisakit.livejournal.com]

U.S. Constitution, Article VI, Clause 2

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

[(Anonymous)]

But see, that's just it. Where in the Constitution does it say that states are forbidden from establishing religions? The only thing the first amendment says is that Congress is not allowed to.

Now, I don't like that idea any more than you do. But the first amendment does read, "Congress shall make no law..." It does not read, "the right to religious freedom shall be preserved." So how does that apply to the states at all?

Jeremy

Re: Have to agree, actually

[elfs.livejournal.com]

Y'know, there is a check. It's called time, and the passage thereof. All your proposal will do is add more to the book and its interpretation. If the Supremes do things that we don't like, they can be impeached, each and every one of them, and the final decision of the legislature cannot be overturned.

And then the Congress and the President can get together and put in a new collection of autocrats to their liking.

[lisakit.livejournal.com]

OK. I was addressing the guy's statement that the Constitution didn't apply to the individual States. Heh. That's what ticked me off so.


Did some research on the separation issue, but that is one that would take a whole law firm to work on. There is much precedent here (just search any law reporter site for the subject - whew!).

Both Alabama State and Federal case law have upheld the doctrine that church and state should be separate. However there is a wide range of how that should be applied and it is very subjective. This particular case is very borderline, even given Alabama's more specific statutes. It will be interesting to see what any succesive appeals may say.


As to this: Where in the Constitution does it say that states are forbidden from establishing religions?

That would depend on judges' interpretations as to how the 1st and 14th amendments work. But again, case law has shown that no governmental body has the right to establish a religion (separation of church and state).

[(Anonymous)]

I was addressing the guy's statement that the Constitution didn't apply to the individual States.

Except that's not what he said. He said the first amendment as it is written (as opposed to how it has been interpreted since) speaks only about the federal government, not about the states. He's right there. Despite the fact that I like the overall effect, I'm one of those who thinks the first amendment has been "interpreted" well beyond any reasonable meaning of the actual words.

Jeremy

[lisakit.livejournal.com]

Except that's not what he said. [...] He's right there.

:re-reads original post

Yep, you're right about that.

However, as I pointed out in another reply in this post, interpretation and precedent *are* a big part of how our laws are made. You can't just look at statutory law and ignore case law (and vice versa). The judicial system was set up to address the fact that people rarely agree when it comes to matters of interpretation. So the first amendment (and any statutory law) *is* what it has been interpreted to be.


Whew! It's morning man, and you're making me think! Ow! :p

Legal arguments

[woggie.livejournal.com]

I got through about half of the argument about the 1st and 14th Amendments when my eyes unfocussed and refused to focus until I stopped trying to read what was there.

Scratch "lawyer" as a viable profession for me to try... :)

Re: Legal arguments

[(Anonymous)]

I assume you're planning on running for Congress, then? :)

Jeremy

[wendor.livejournal.com]

The problem here (and what we need a check on) is that the case law in question has NO statutory law to back it up.

It is case law based purely on personal opinions.

Since there is no appeal beyond a Supreme Court ruling...the current system allows the US Supreme Court to create new law arbitrarily...with no provision for their opinion to ever be overturned except by that very same body. A tyranny of the very worst sort.

Re: Have to agree, actually

[wendor.livejournal.com]

Justices of the Supreme Court can't be impeached for doing things that we don't like.....by "law" (based on the opinions of those very same people) impeachment requires more than just a ruling in a contested case. (such as an indictable criminal act)

The judiciary cannot overturn an impeachment decision (Nixon v. Unites States 1993)...but they have indeed managed to cover themselves on the front end.

Re: Have to agree, actually

[wendor.livejournal.com]

Yes, this system works well when the statute is grossly contradictory to existing precedent.

But what about the situation in question.....when the ruling (precedent) is grossly contradictory to the statute?

What do we do when the court's "interpretation of a statute" strays from the actual text of the statute into the realm of extending the existing statute beyond it's original scope and thus creating new law out of whole cloth? The obvious answer is to appeal that ruling.....an answer that works fine as long as the impropriety takes place at a level lower than the US Supreme Court. If the Justices of the US Supreme Court are corrupted by their own absolute power there is no legal recourse.

[wendor.livejournal.com]

From the AP wire today: "U.S. District Judge Myron Thompson has said he may fine the state about $5,000 a day if the monument is not removed by the end of the day Wednesday. He has said it would be permissible for the monument to be moved to a less public site, such as Moore's office."

Seems to me to be an awful weak spot in his ruling that it isn't based on "public" -vs- "private" display, but on "prominent" -vs- "less public" display.

Seems that it would either be legal to display it publicly on government property....or not legal. It's an awful grey area to get into "it's a public display....just not AS public as before"

[lisakit.livejournal.com]

But there is statutory law here; the 1st and 14th Amendments to the US Constitution. It's because they are so wide open to interpretation that the court must make the decision.

As to the other, well yah. That's the way our system is set up. In every case, a final decision must eventually be made. I don't like the abuse potential inherent in this ultimate part of the system myself but I believe that we do need a place for the buck to stop.

One solution I can see to this is to limit the terms of the Supreme Court Justices to something like 10 or 20 years. This way we can still get the stability, experience, and reduction of chaos that a long-time bench seat provides but still provide a way of changing the tyranny. FYI - SC Justices can be impeached too (and that action is nearly as rare as with the presidents).

Perhaps another solution would be to appoint justices by election instead of giving the president this incredible power. I hope to God Renquist doesn't retire while Dubya is still in office! *shudder*

BTW - what is your experience and/or background with the legal system? I don't mean to be denigrating in any way here, I fully admit that I'm a student myself and a new one at that. Just curious as to where you're coming from. I've been enjoying this debate. :)

Re: Have to agree, actually

[lisakit.livejournal.com]

What do we do when the court's "interpretation of a statute" strays from the actual text of the statute into the realm of extending the existing statute beyond it's original scope and thus creating new law out of whole cloth?

Well, when a statute is quite vague there are two options:
1) repeal the statute
2) create or revise case law to define it.
Again though this is up to the court in question and gets back to your dilemma of how do you change the highest courts decision. You don't. You wait until we get new SC Justices on the bench or until public policy has changed such that the current justices are making different types of decisions, and bring the matter up in the next similar case.

It's not perfect, but I don't know how to fix it either. I certainly prefer our system to ones like that of France where the courts have no leeway at all if there is no statute to cover the question. In those instances a wronged party cannot achieve justice because, as they operate, if there is no statute governing the situation there is no wrong done.

[wendor.livejournal.com]

"But there is statutory law here; the 1st and 14th Amendments to the US Constitution."

But if you read the 1st and 14th Amendments, they are quite specific. The 1st places SPECIFIC restrictions on Congress, the 14th places SPECIFIC restrictions on the States.

The case law in question covers areas NOT specified in either. It is purely court created law extending those two into areas they didn't previously cover.


"It's because they are so wide open to interpretation that the court must make the decision."

I would argue that both of them are quite specific and not really open to wide interpretation. Unfortunately the ones deciding if they are open to interpretation (Supreme Court) are the same ones benefiting from that decision. (it allows them absolute power to make law as they see fit)

Experience/background? Just a hobby... and a personal goal that one should understand the legal system that one is governed by/participates in.

Re: Have to agree, actually

[wendor.livejournal.com]

And again we're back to the problem of allowing the same people to decide if the statute is vague enough to rquire interpretation that benefit from interpreting it.

Re: Have to agree, actually

[lisakit.livejournal.com]

Um, that's what I just said.

And again for solutions:
1) Move for impeachment (for SC Justices the SC does not try the case, Congress does - no I don't know the process well enough to describe it);
2) Create a bill to limit the terms of SC Justices;
3) Wait for a vacancy on the bench and fill it with someone who better reflects the wishes of the people.

[elfs.livejournal.com]

Law frequently is gray, and I think in this case Judge Thomspon is trying to make a point: the rotunda of a government building is no place for an individual, whomever he may be, to impose his religious feelings on others at taxpayer's expense. We have always recognized the power of religion in people's lives, and if we allocate "personal" space to individuals working in government service, such as offices, we should recognize that we cannot legitimately ask them to divest themselves of all personal effects, not even those that proclaim faith. We don't ask people coming to work for us to take off their yarmulkas, crosses, or sacred underwear.

On the other hand, the rotunda is not Moore's "personal" fiefdom, however he may think of it himself, and he's being checked by the forces that give him his authority in the first place.

Re: Have to agree, actually

[wendor.livejournal.com]

Unfortunately the problems with those 3 are:

1. Basically impossible to impeach SC Justices without proof of an indictable criminal act.

2. Constitution specifies term for Federal judiciary....so changing it would require an Amendment.

3. Live with the damage for 20-30 years.

[wendor.livejournal.com]

And had Thompson said that moving it to a "personal" space was acceptable, then I wouldn't have issue with it.

But his statement was "a less public location".

Since both he and the Appellate Court cited that they deem it illegal for public display on government property then a less public location (but still public) on the same government property should still be illegal based on their rulings.

To me this is just further proof that Thompson is not trying to enforce the law...he is simply using his position as a cover to enforce his personal feelings on the matter.