Home-Schooled Christian Ordered to Public School 9/14/2009
A New Hampshire court ordered a home-schooled Christian girl to begin attending the local public school, citing the rigidity of her religious beliefs as reason. Watch the Journal Editorial Report on the FOX News Channel on Saturdays at 2 and 11 pm EDT.
There are two fundamental, dichotomous assumptions embodied in the United States Constitution, as it exists today – two wildly different starting points, when it comes to understanding the power and limitations of government that are completely at odds with each other, yet coexist within the same document.
Before I set forth an articulation of the particular assumptions themselves, please allow me to present you with an excerpt from a very interesting article by Mr. Randy Barnett which he wrote for the Northwestern University Law Review and which was published this year. It is my hope that this short excerpt from Mr. Barnett’s article will cast into stark relief the issue I want to address.
Mr. Barnett wrote:
“While most everyone probably assumed that takings for public use must be compensated and that unenumerated natural rights could not properly be infringed by the federal government, neither proposition was communicated by the unamended text of the Constitution”1
Mr. Barnett is talking about the “Takings Clause” of the Fifth Amendment, when he mentions, above, that “takings for public use must be compensated…” In the above quote, the point Mr. Barnett makes is that neither proposition that takings for public use must be compensated nor the proposition that unenumerated natural rights could not properly be infringed by the federal government is communicated by the unamended text of the Constitution, but that, in and of itself, is hardly interesting.
What is more interesting is why. Why does the unamended text of the Constitution not constrain government with respect to taking private property for public use or with respect to infringing upon the unenumerated natural rights of citizens? This simple, yet overlooked, question brings us back to the two dichotomous assumptions we find in the Constitution, as we have it today.
_christy_constitution_xl.jpg "Constitutional_Convention")
Delegates at the Constitutional Convention in 1787 prepare to sign the U.S. Constitution. credit: "Scene at the Signing of the Constitution of the United States" by artist Howard Chandler Christy
The unamended Constitution assumes that, unless a power is specifically enumerated – “enumerated” just means “listed” – in the Constitution, the federal government does not have that power. So, if the Constitution does not explicitly say, “Federal government, you have the power to do X,” the federal government does not have the power to do X.
The amended Constitution – or, rather, all of the amendments to the Constitution – operate(s) under the assumption that unless the federal government is specifically forbidden from doing something, it has the power to do it. In other words, the amendments assume that the federal government can do anything it decides to do, unless it is prohibited by the Constitution [particularly the Bill of Rights].
So, there you have it – the two assumptions of the U.S. Constitution in plain English:
Those two assumptions are clearly at odds with each other. The government we have, today, exists, to a large degree, “between” those two assumptions. Conservatives, particularly of the “libertarian” stripe, believe that the federal government can do nothing unless the Constitution empowers it to do [insert here whatever it is the government is wanting to do].
On the other hand, liberals, particularly of the “secular-progressive” stripe, believe that the federal government can do anything unless the Constitution prevents it from doing [insert here whatever it is the government is wanting to do], and even then, most of them will argue, the Constitution is a “living document,” that changes with time, so we can get away with ignoring it, if we really, really want to.
Which America do you believe in? Which one do you want? Do you want an America in which you have freedom by default, or freedom only by decree and subject to change?
By Noel Bagwell
Mar 20, 2009
Tom Raum, for the AP, wrote Thursday,
“Denouncing a “squandering of the people’s money,” lawmakers voted decisively Thursday to impose a 90 percent tax on millions of dollars in employee bonuses paid by troubled insurance giant AIG and other bailed-out companies.
AP - House Speaker Nancy Pelosi of Calif. gestures during a news conference, Thursday, March 19, 2009, on Capitol Hill
In some cases the bonuses might be taxed 100 percent leaving the recipients with nothing.
It was only this past weekend that the bailed-out insurance giant paid bonuses totaling $165 million to employees, including traders in the Financial Products unit that nearly brought about AIG’s collapse.
AIG has received $182.5 billion in federal bailout money and is now 80 percent government owned.
Disclosure of the bonuses touched off a national firestorm that both the Obama administration and Congress have scurried to contain.
The House vote was 328-93. Similar legislation has been introduced in the Senate and President Barack Obama quickly signaled general support for the concept.”
It seems, however, that this legislation, H.R. 1586, is unconstitutional, because it singles out for taxation a specific group of people, which violates the Constitutional prohibition on bills of attainder. Article 1, Section 9, Clause 3, states that “No bill of attainder or ex post facto Law shall be passed.”
“A bill of attainder is an act passed by a state or federal legislature that punishes a specific person or group without a trial. In determining whether a piece of legislation violates the constitutional prohibition against bills of attainder, the Supreme Court generally tests whether the act specifies a group of people, contains a punishment specifically for that group of people, and does not require a trial. Given that criteria, this legislation could be ruled unconstitutional for imposing a tax penalty on a specific group of individuals.”1
All this bluster and “outrage” is really just a shell game to hide the blame that really belongs with Chris Dodd who authorized these bonuses in the first place. Dodd, however, now blames the administration who he says put pressure on him to authorize these bonuses. Obama unsurprisingly says he is “stunned” by the AIG bonuses, which is not surprising given either his incredible capacity for deceit or his total incompetence or some mixture of both, depending on your point of view.
What is surprising, however, is that Obama said, “the buck stops with me,” and that MSNBC quoted him on that! Obama is more-or-less assuming responsibility for this whole AIG fiasco. If Obama is underestimating the genuine outrage that Main Street voting Americans are experiencing over this whole Bailout Bonus scandal, he is gambling with significant political clout that could – and I predict will - come back to haunt him in the next Presidential election.
Americans want solutions, not excuses and finger pointing. I suggest term limits for these pinheads in Washington. Once their fat cat politician lifestyle is no longer an open-ended proposition, maybe we can start getting politicians who care less about campaign contributions, earmarks and political favors and more about what’s good for the American people.
By Noel Bagwell
Feb 4, 2009
There is bound to be increased discussoin of the appropriate role, if any, religion plays in society and government as a result of the recent controversy involving the Democrat majority in the House of Representatives ramming through legislation that discriminates against organizations that permit expressions of religious worship – including personal prayer – by decreeing that funds from the stimulus bill are prohibited from being used for the “modernization, renovation, or repair” of facilities that allow “sectarian instruction, religious worship or a school or department of divinity.”
Inevitably, someone – probably a liberal – will bring up the supposed “separation of church and state,” declaring that this legislation embodies that principle, and they will very likely claim or infer that it is both legal and Constitutonal. While it is true that the principle of the separation of church and state has been quoted, cited and referenced in Supreme Court decisions, those decisions do not create laws that constitute an actual separation of church and state.
The Constitution says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech,” and this bill does make a law that prohibits the free exercise of religion by creating penalties for religious expression, thereby limiting it.
I know it’s not perfect, but Wikipedia has a good treatment of the topic, at least, in its introduction:
Separation of church and state is a political and legal doctrine that government and religious institutions are to be kept separate and independent from each other.[1] The term most often refers to the combination of two principles: secularity of government and freedom of religious exercise.[2]
The phrase separation of church and state is generally traced to the letter written by Thomas Jefferson in 1802 to the Danbury Baptists, in which he referred to the First Amendment to the United States Constitution as creating a “wall of separation” between church and state.[3] The phrase was then quoted by the United States Supreme Court first in 1878,[4] and then in a series of cases starting in 1948.[5]
But what does that mean? A “wall of separaion” between church and state. The First Ammendment – despite Jefferson’s commentary – simply states that “Congress shall make no law respecting an establishment of religion,” meaning that Congress will not make a law that establishes any religion as a “State Religion” this was done to prevent any one religion from dominating any other religion, as was the case in England at the time (which was the problem they saw and created this Ammendment, in part, to avoid).
The purpose of the First Ammendment, with regard to religion, was to create an equal treatment of religions by the government, not to establish a secularist society. This definition of laïcité was something that came to be pretty commonly understood in the twentieth century, but which liberals conveniently ignore or twist to fit a definition they prefer.
Liberals also ignore the second part of the “separation of church and state” portion of the First Ammendment, which states, that Congress shal make no law ”prohibiting the free exercise thereof,” (of religion, that is). So, the First Ammendment guarantees freedom of religious expression. If Congress passes a bill that contains restrictions on or penalties for the free expression of religion, it violates the Constitution.
It is important that everyone understand that the First Ammendment does not create a secular society or bar religion from government or the public discourse; instead it simply prevents any one religion from becoming the “state religion,” and it also classifies as unconstitutional any legislation that prohibits the free expression of religion. This is what guarantees our freedom of religion (part of the Billof Rights).
By Noel Bagwell
Feb 4, 2009
U.S Constitution, Ammendment I:
“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.”
The stimulus bill that was passed by the House of Representatives last week bans money designated for school renovation from being spent on facilities that allow “religious worship.” This has ignited a fury among critics, because it violates the First Amendment and is an attempt to prevent religious practice in schools.
According to the bill, which the Democratic-controlled House passed despite unanimous Republican opposition, funds are prohibited from being used for the “modernization, renovation, or repair” of facilities that allow “sectarian instruction, religious worship or a school or department of divinity.”
This is a situation in which religious rights activists really should sue the government. The Supreme Court’s job is to strike down legislation that is unconstitutional. This legislation is unconstitutional, so the Supreme Court needs a case it can use to strike it down.
So, all you religious activists out there: call your lawyers. It’s what the ACLU would do if the government passed legislation against abortion or some other issue that is holy to liberals. If you want to win a war, you have to fight your enemy on the battlefield, wherever it may be. In this case, it’s in the courts.
SocialVibe