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Clayton's commentary on news and events of the day. Broadly speaking, I'm a conservative with libertarian sympathies (getting more conservative as my children get older).
 Never forget! I ran for Idaho state senate in 2008--didn't win I've written a number of history books, as well as scholarly and popular articles, (see my web page).
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Saturday, July 10, 2004
Wow! Joe Wilson Lied--Not Mistaken The Washington Post, of all papers, is reporting: Former ambassador Joseph C. Wilson IV, dispatched by the CIA in February 2002 to investigate reports that Iraq sought to reconstitute its nuclear weapons program with uranium from Africa, was specifically recommended for the mission by his wife, a CIA employee, contrary to what he has said publicly.Thanks to Kevin Patrick for the pointer. New Additions to My Primary Sources Page These are all here. 1777: From James T. Mitchell and Henry Flanders, ed., Statutes at Large of Pennsylvania from 1682 to 1801 (Harrisburg, Penn.: William Stanley Ray, 1898), 9:75-94. Another long militia statute, obligating (on page 77) every white male inhabitant from 18 to 53 to be enlisted in the militia, with exemptions for members of the Continental Congress, state officials, ministers, faculty of colleges, and "servants purchased bona fide" (which would seem to include slaves as well as indentured servants). Much of this statute is a very tedious organization of the militia to ensure that not everyone would get called out simultaneously, and to make sure that no one was unfairly forced to serve more than others, dividing the militia into multiple "classes" Unlike previous militia statutes of Pennsylvania, this provides for the government to arm at least two classes in each company. 1777: From James T. Mitchell and Henry Flanders, ed., Statutes at Large of Pennsylvania from 1682 to 1801 (Harrisburg, Penn.: William Stanley Ray, 1898), 9:110-14. Not really a militia law, the Test Act is sometimes cited by those attempting to prove that the right to keep and bear arms was not considered a fundamental right, because those refusing to swear an oath of loyalty to the revolutionary government would be disarmed. The theory then is that if this was not considered a fundamental right, then it should not be considered a fundamental right today, subject to whatever restrictions the government sees fit. As the Act explains on page 111, "whereas allegiance and protection are reciprocal, and those who will bear the former are not nor ought not to be entitled to the benefits of the latter" the Act specifies (on pages 112-113) that all white males refusing to take the oath "shall during the time of such neglect or refusal be incapable of holding any office or place of trust in this state, serving on juries, suing for any debts, electing or being elected, buying, selling or transferring any lands, tenements or hereditaments, and shall be disarmed by the lieutenant or sub-lieutenants of the city or counties respectively." Hmmm. By the "not a fundamental right" logic, there would be a lot of other rights lost as well. 1777: From James T. Mitchell and Henry Flanders, ed., Statutes at Large of Pennsylvania from 1682 to 1801 (Harrisburg, Penn.: William Stanley Ray, 1898), 9:131-6. This supplement to the militia law above is primarily technical in providing for election of officers. 1777: From James T. Mitchell and Henry Flanders, ed., Statutes at Large of Pennsylvania from 1682 to 1801 (Harrisburg, Penn.: William Stanley Ray, 1898), 9:167-9. This militia law was to make "more equal the burden of the public defense" by preventing wealthy people from just paying to avoid militia duty. From all accounts I have read, it wasn't a raging success, and the Philadelphia militia in particular became filled with poor and radical artisans. 1777: From James T. Mitchell and Henry Flanders, ed., Statutes at Large of Pennsylvania from 1682 to 1801 (Harrisburg, Penn.: William Stanley Ray, 1898), 9:185-9. This "further supplment" to militia law seems to be a simplification of the method of calling out the militia, along with provisions for fines for militiamen failing to do their duty. 1780: From James T. Mitchell and Henry Flanders, ed., Statutes at Large of Pennsylvania from 1682 to 1801 (Harrisburg, Penn.: William Stanley Ray, 1898), 10:144-73. This seems to be primarily technical changes in how the militia is structured, but I have an odd feeling from what I have read about the radicals in the Philadelphia militia and their struggle against what they perceived as economic oppression, that some of this was to prevent a repeat of the militia's attempt to scare the wealthier classes into submission. Interesting Admission From the Chicago Tribune The Chicago Tribune's "public editor" (an ombudsman, I guess) has an interesting column (free registration required) about the selection bias involved in their coverage of homosexuality: As public editor, I find the rest of his letter less interesting and provocative than the predicate: that the Tribune is "overwhelmingly pro-gay" in its viewpoint.This is exactly right. Journalists, lawyers, and university faculty (all members of the elite--or at least they think so) are so overwhelmingly convinced on the issue of homosexuality that few of them can even imagine that there might be another side to the story (except to assume that those who disagree about this are bigots, or fools). I would argue that this is because the analogy that likens homosexuality to race, sex, or ethnicity is ideologically very powerful. Unfortunately, professions that are primarily focused on ideas are easily swayed by grand theories that try to neatly explain everything. This is why Marxism was (and is) among the most powerful models for academics--it has a grand theory to explain economics, religion, art, and in some decades, even biology (T.D. Lysenko). The real world doesn't fit into such neat and tidy categories. "There's a debate in the culture as to whether [homosexuality] deserves classification" as a protected attribute like race, LaBarbera said. But the media behave as if that debate already has been resolved. "They take a protective attitude toward homosexuality."Yes. It is certainly true that many opponents of homosexuality are religious. (To my surprise, there are a surprising number of atheists and agnostics who share my concerns about the way in which homosexuality dominates the popular culture and courts.) I suspect that this is because the mass media overwhelmingly promotes homosexuality, and religion is the only force left that questions these assumptions. Those who are not religious will almost never run into any expressions of disapproval of homosexuality, and thus, have no reason to even question the dominant view. If you think I exaggerate: when was the last time that you saw any disapproval of homosexuality in any secular newspaper, magazine, or television show? For many years, I found myself in a rather strange position as a Christian. The Bible certainly expresses disapproval of homosexuality (along with extramarital sex, greed, gluttony, and a host of other behaviors that define modern America), and I knew in some abstract sense that this must be right. But I had grown up in a fiercely pro-homosexual society (California) where homosexuality was generally classified about like skydiving or eating sushi: it wasn't for everyone, but if that's what someone wants to do, that's their choice. If there was ever a reference to homosexuality in the Los Angeles Times, it was always phrased so as to make homosexuality look like a good thing. To me personally it was like eating sushi: "Yuck!" But if you enjoy it, that's for you, just don't be tiresome and try to persuade me that sushi is something that I need to eat and enjoy. It was only after I moved to the San Francisco Bay Area that I begin to question this very libertarian view. The more contact that I had with real homosexuals, instead of the abstract theory of homosexuality, the more apparent it became that while homosexuals were not monolithic (and lesbians and gay men were actually two quite different cultures), there were some pretty common characteristics that made them distinctly "different" from heterosexuals. The more apparent it became that the abstract homosexuality had little to do with real homosexuals, the more I questioned what I had grown up believing. The more digging I did, the more apparent it became that the dominant 1970s and 1980s portrayal of homosexuality was, in many respects, false. Friday, July 09, 2004
New Resistant Strain of Syphilis From AP: (AP) -- A fast-spreading mutant strain of syphilis has proved resistant to the antibiotic pills that are offered to some patients as an alternative to painful penicillin shots.Well, that's no surprise. The additional problem is one that anyone who has read much about the last four centuries already knows: Experts said the findings also show that syphilis patients treated with azithromycin must have follow-up tests to be sure they are cured. After syphilis sores disappear, the disease can silently attack the brain and cause dementia, paralysis and death.I've blogged about this before--and pointed out that syphilis is very disproportionately present among gay men--because there is a very promiscuous segment of homosexuals that seem to have a self-control problem. John Kerry Upset That Ken Lay Is Being Prosecuted No, really, he is insisting that prosecuting Ken Lay now--rather than two years ago--is a political trick: BECKLEY, W.Va. July 9, 2004 — Democrats John Kerry and John Edwards on Friday questioned President Bush's claim on values, arguing that the administration's election-year decision to prosecute former Enron chief Kenneth Lay after more than two years hardly amounted to American values.And if the Justice Department had brought this indictment two years ago, and Lay was already in prison, Kerry's argument would have been that they hurried the process to get this embarrassment out of the way before the election. Is there anyone more transparently dishonest than John Kerry (I mean, besides Michael Moore)? Bill Clinton was sleazy, but he was at least competent at this sort of thing. Kerry sure isn't. How Homosexuals Are Going To Help Republicans Gain Seats In Congress I don't expect the Federal Marriage Amendment to pass either house--it needs a 2/3 vote in both House and Senate. But it will force a lot of Democrats (and a few Republicans) to stand up and be counted on this issue. Even Senator Smith from Oregon is telling homosexuals that there are limits to what he can do for them: The vote puts Democrats and Republicans on the spot. One senator acknowledged the political risk in trying to walk a line supporting both traditional marriage and gay rights.Now, I don't believe for a second that being "true to myself" matters anywhere near as much to Senator Smith as getting re-elected--and even in strongly left-wing states like Oregon, homosexual marriage doesn't fly. The proof of this is that even California--as lunatic fringe of a state on sexual morality as there is--a majority of voters voted to define marriage as "one man, one woman." There are going to be Congressmen who are going to vote against the FMA--and at the next election, a number of them (mostly Democrats) are going to lose because of it. About 2% of the population is homosexual. I would guess from conversations that I have had over the years that perhaps 3/4 of them consider this a make or break issue for whom they vote. Some don't see marriage as important; some regard it as bourgeois; some are actually pretty conservative sorts who, other than their sexuality, don't want to rock the boat. Yes, there are straights who will be upset about their Congresscritter voting against FMA, but outside of university faculties and the bar association, how many are there for whom this will be a make or break decision? Something like 45-50% of the population opposes not only homosexual marriage, but even civil unions, suggesting that there is a significant hostility to homosexuality above and beyond simple traditionalism. A fair number of those voters are already voting Republican, of course. One of the causes of the Reagan Revolution in 1980 was the Democratic Party's unwillingness to see that its pandering to the left with respect to religion, gun control, and the rest of the elitist belief system, drove a lot of conservative and moderate Democrats into voting Republican--some for the first time in their lives. I do not find it at all implausible that a Congressman voting against FMA will motivate at least 3-5% of the population into voting against that guy or gal the next time around--and in some races, that will more than make up for those who vote for him for having the "courage" to vote against it. The Democrats are whining that the FMA is purely a political maneuver to make them look bad in an election year. Perhaps their masters should have thought about that, before starting up unlawful marriages, and engaging in the judicial tyranny of Goodridge. I'm not entirely thrilled with FMA--it's a rather meat-axe solution, because it takes away the authority of the state legislatures to pass their own laws. But because of elitism and judicial tyranny, it sometimes takes a meat-axe to get their attention. More Reasons To Not Trust AP's Iraq Coverage Over at PowerLine there is a very well done analysis of AP's recent news story, which relies on attacking the (false) claim that the Bush Administration says that the attacks are largely foreign fighters. To believe AP's version, most of those attacking us are former Baathists: Guerrilla leaders come from various corners of Saddam's Baath Party, including lawyers' groups, prominent families and especially from his Military Bureau, an internal security arm used to purge enemies.Well golly gee, what a surprise! The same crowd that used to "purge" enemies by torturing them to death aren't on our side. I am so surprised! Remember The Al Gore/Unabomber Quiz? The one where you were asked to guess which statements came from which, and it was hard to tell the difference? Clifford D. May has an article about Hezbollah support for Fahrenheit 9/11: Yes, of course. And it's not as if Mr. Moore's views of America differ dramatically from those of Hezbollah. If you think I exaggerate, look at the two statements below. One is from Mr. Moore, the other from Hezbollah leader Hassan Nasrallah. Guess which belongs to the Hollywood celebrity and which to the mass murderer. (The answer is at the end of this column*.)And no, I'm not going to tell you who said what. You'll have to go read his column yourself. The equivalent of Fahrenheit 9/11 during World War II would be if Charles Lindbergh had made a film that suggested that Roosevelt had purposefully started a war with Japan in order to have an excuse to go to war with Germany, because Jews were telling Roosevelt what to do. Lindbergh, while an opponent of the war, and far too friendly with Nazi Germany, at least had to good sense to stop his agitation once the war was under way. Michael Moore does not. Am I Missing Something On This News Story? This Washington Post news story says that: The AP-Ipsos poll found Bush leading Kerry just outside the margin of error, with the president's support at 49 percent, Kerry at 45 percent and independent candidate Ralph Nader at 3 percent.Later in the story they tell us that the margin of error is 3.5%. I won't claim to be spectacularly knowledgeable in statistics, but assuming that by "margin of error" they mean the 95% confidence interval, then it is within that confidence interval that Bush might have as little as 45.5%, and Kerry as much as 48.5%. Perhaps I'm reading too much into the story when I see "just outside the margin of error," and read that as meaning that Bush would clearly win. Taking The Terminator Role Too Seriously? This article by John Fund at the Wall Street Journal includes this amusing quote from Governor Schwarznegger's State of the State address some months back: An ambitious effort to streamline and reorganize state government, the project was born last January when the governor announced in his State of the State address: "Every governor proposes moving boxes around to reorganize government. I don't want to move boxes around. I want to blow them up."The rest of the article discusses how Schwarznegger's team is trying to save money by terminating unneeded boards (of which there are many--like the agency that licenses dry cleaners, if they still exist) and selling off government property. This Isn't Funny At All Victor Davis Hanson has a sobering piece over at National Review Online about how the left (including people that ought to know better) still don't get it: In response to the historic events of the week, one columnist for the New York Times decried George Bush's pronunciation of "Eye-rack." Another pundit trumped that profundity by whining that Bush had written "Let Freedom Reign," rather than "Ring" — a verb that, had Mr. Bush employed it, she would most likely have denounced as a hackneyed cliché.I think the answer is simply that they care more about partisan gain than they do about rape, torture, and mass murder. Other news coverage suggests that Kerry should resign from the Senate immediately, because his campaigning is taking precedence over affairs of national importance. Drudge Report quotes: Just hours before attending an all-star celebrity fundraising concert in New York, Dem presidential candidate John Kerry revealed how he has been too busy for a real-time national security briefing. Thursday, July 08, 2004
The Used Book Market Is Pretty Bizarre I received an email asking where to find a copy of For the Defense of Themselves and the State, because it is now out of print. I was going to suggest the used book market, until I clicked here, and discovered that a used book dealer is asking $174.30 for my book. The book was only $65 (a steep price, as far as I am concerned) when new. What I don't understand is why my publisher doesn't make a small run of a few hundred copies to take advantage of such absurd prices. I Am So Surprised! The New York Post reported on July 6: WASHINGTON — Transcripts of secret U.N. Security Council sessions show that U.S. and British diplomats were constantly thwarted by their French, Russian and Chinese counterparts while investigating Saddam Hussein's dirty deals under the oil-for-food program.Well what do you know? Countries involved in corruption didn't want their little scam to stop! As Good As It Gets: James Lileks Dismembers Michael Moore's Lies Just a few samples: it's well worth reading in full: His patriotic bona fides thus established, he says this:But, in high school, things changed. Nine boys from my school came back home from Vietnam in boxes. Draped over each coffin was the American flag. I knew that they also had made a sacrifice. But their sacrifice wasn't for their country: They were sent to die by men who lied to them.For some reason that intrigued me: nine boys from my school. So I googled around, and found the Casualty list for the Vietnam War. There were six casualties from Davison, Michigan. (He didn’t go to high school in Flint. He didn’t live in Flint. You knew that, right? He lived in a suburb.) They weren’t boys. They were men. The earliest was killed in 1967, and there were two casualties in that year. Two in 1969, one in 1968, and one in 1970. Moore was born in 1954, so he would have entered high school in 1969, after which there were four casualties. (One of which died of a heart attack.) Two were drafted, incidentally. The rest – if I’m reading the site correctly – appeared to have enlisted. Where The Money Comes From It's always entertaining to see to which political campaigns your really, really wealthy acquaintances are giving money. One fellow I know in California has a driveway that is several miles long--in Sonoma County, where even a house on a residential lot will set you back $300,000 or more. He of course gave the legal maximum of $2000 to the Kerry campaign--doubtless out of concern for the little guys. Someone I don't know, of course, is Bill Gates, who gave the maximum of $2000 to Senator Patty Murray--a left-wing Democrat, and $750 to Rep. Carolyn McCarthy (D-NY), one of the principal gun control advocates these days. Bill Gates's dad--also William Gates--gave pretty sizeable chunks of money to not only Patty Murray, but also Rep. Jim McDermott (D-WA), the guy who insisted that the capture of Saddam Hussein was staged for the political benefit of Bush. This is one of the reasons why too much wealth can be a destructive thing--it just provides more money for the left to spend impoverishing the middle class. More Evidence of Ken Lay's Special Relationship To George Bush You can see a picture of Ken Lay in handcuffs on Drudge Report (at least for now). Now remember: Lay is accused of crimes that were largely during the Clinton Administration. He is being charged by the federal government under the Bush Administration. And this shows some sort of unfair, cozy relationship between Lay and Bush? Nader Paranoid? Perhaps. But knowing what the Democratic Party was capable of under Bill Clinton, I can't immediately dismiss this: WASHINGTON — Democrats could be participating in a "mini-Watergate" effort to get Ralph Nader (search) out of the presidential picture, the consumer advocate charged Thursday.Well, not really. If the Democrats are doing something unethical or illegal, that might be an apt comparison. But to make it a "mini-Watergate" would require widespread media attention to it--and pretty obviously, nothing that fundamentally damages Kerry's chances is going to get covered by the mainstream media. Gays Out Member of Congress Apparently Sen. Barbara Mikulski (D-MD) hasn't been vocal enough in her opposition to the Federal Marriage Amendment--so homosexual activists have "outed" her. I don't know how much this will damage her chances of re-election, but it's hard to imagine that it is going to help her. Maryland, in spite of a strong tendency for police state politics (for example, the arrest of supporters of a pro-gun initiative the day before the election a few years ago), is socially somewhat conservative, and whatever Republican runs against Mikulski will have a somewhat stronger position because of it. There are threats by homosexual activists to "out" more members of Congress and Congressional staffers in order to defeat the FMA. This really tells you a lot about this crowd, doesn't it? If this is what they do to their friends (and Mikulski, while not out front on this, was opposed to the FMA), what will they do to their enemies? Well, That's One Way To Energize A Core Democratic Constitutency! From Drudge Report: CAN'T KEEP HANDS OFF EACH OTHER Buying Uranium in Niger The Financial Times is reporting that Lord Butler's report concludes that yes, indeed, it appears that Iraq was trying to buy uranium in Niger: A UK government inquiry into the intelligence used to justify the war in Iraq is expected to conclude that Britain's spies were correct to say that Saddam Hussein's regime sought to buy uranium from Niger.Obviously, you aren't going to read this in most American newspapers. How would that help elect Kerry? Shocking Drop in Unemployment But it may not mean as much as the numbers alone would suggest: WASHINGTON (Reuters) - U.S. jobless claims staged an unexpectedly steep fall to the lowest level in nearly four years with 39,000 fewer workers seeking aid, the government said on Thursday, but seasonal factors distorted the report.I'm still disappointed with how miserably low Treasury yields are. Wednesday, July 07, 2004
Playing Telephone With The Constitution [Feel free to criticize and comment] I always have great fun asking people to show me where “separation of church and state” is in the Constitution. A few victims of my sense of humor know that no such phrase appears in the Constitution; it is only how the Supreme Court has interpreted the rather different language of the First Amendment. Most people, however, get very confused when they read the actual language: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” Where, they ask me, does this “separation of church and state” come from? When they find out, they often become quite upset. What has happened is the legal equivalent of playing telephone, where a dozen people sit in a circle, one whispers a sentence in the ear of the person next to him—and by the time the sentence has worked its way around the circle, it is often unrecognizable. Back in 1802, a group of Baptists in Danbury, Connecticut, wrote a letter to President Thomas Jefferson, congratulating him on his election. They were also upset because Connecticut (like a few other states at the time), had an established church, meaning the one particular denomination had special legal privileges. In some states, the government collected taxes to fund that church. The Danbury Baptists were not happy about this, understandably, and hoped for President Jefferson’s help. There wasn’t much that Jefferson could do; the First Amendment prohibited the federal government from giving special treatment or privileges to a particular church, but the states were free to give these sort of special privileges. Jefferson did write a very nice letter back to them that expressed his belief that “religion is a matter which lies solely between Man & his God” and that “the legitimate powers of government reach actions only, & not opinions….” In short, everyone was free to believe anything they wished, no matter how silly, but the government was free to punish actions that disrupted public order. Jefferson did quote the First Amendment, and claimed that it built “a wall of separation between Church & State.”[“Jefferson’s Letter to the Danbury Baptists,” Library of Congress Information Bulletin, June 1998, available at http://www.loc.gov/loc/lcib/9806/danpre.html, last accessed July 6, 2004.] Jefferson probably would have liked to see Connecticut disestablish the Congregational Church; he had played a major role in his home state of Virginia in disestablishing the Anglican (now Episcopalian) Church. It seems most likely that Jefferson’s remarks were intended as a statement of what states should do—-but even Jefferson recognized that the First Amendment was a limitation only on the federal government. State governments throughout the Revolutionary and early Republic period regularly took actions that clearly gave preference to religion in general, Christianity in particular, and in some cases, to specific Christian denominations. Delaware’s constitutional convention of 1776 required delegates to acknowledge “the Holy Scriptures of the Old and New Testament to be given by divine Inspiration.”[Claudia L. Bushman, Harold B. Hancock, and Elizabeth Moyne Homsey, ed., Proceedings of the Assembly of the Lower Counties on Delaware 1770-1776, of the Constitutional Convention of 1776, and of the House of Assembly of the Delaware State 1776-1781 (Newark, Del.: University of Delaware Press, 1986), 209.] Some required a rather broad religious confession of officeholders, such as the 1776 Pennsylvania Constitution: “I do believe in one God, the creator and governor of the universe, the rewarder of the good and the punisher of the wicked. And I do acknowledge the Scriptures of the Old and New Testament to be given by Divine inspiration.” [Pennsylvania Const. (1776), § 10, available at http://www.yale.edu/lawweb/avalon/states/pa08.htm, last accessed July 7, 2004. Similar language remains in the current Pennsylvania Const., Art. I, sec. 4, available at http://sites.state.pa.us/PA_Constitution.html, last accessed July 7, 2004.] Other states were more specific. Maryland’s 1776 Constitution specified what requirements might be imposed on officeholders: “That no other test or qualification ought to be required, on admission to any office of trust or profit, than such oath of support and fidelity to this State, and such oath of office, as shall be directed by this Convention or the Legislature of this State, and a declaration of a belief in the Christian religion.”[Maryland Const. (1776), Art. 35, available at http://www.yale.edu/lawweb/avalon/states/ma02.htm, last accessed July 7, 2004.] This was softened in the 1851 Constitution to “if the party shall profess to be a Jew, the declaration shall be of his belief in a future state of rewards and punishments.”[Archives of Maryland 138:622, available at http://www.mdarchives.state.md.us/megafile/msa/speccol/sc2900/sc2908/000001/000138/html/am138--622.html, last accessed July 7, 2004.] North Carolina’s 1776 Constitution was even more specific: “That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State.”[North Carolina Const. (1776), available at http://www.yale.edu/lawweb/avalon/states/nc07.htm, last accessed July 7, 2004.] Along with requirements for officeholders, some state constitutions still imposed a religious establishment. The Massachusetts Constitution of 1780, for example, ordered the legislature to pass laws requiring local governments to tax the population “for the support and maintenance of public Protestant teachers of piety, religion, and morality in all cases where such provision shall not be made voluntarily.” The Constitution also authorized-—but did not require-—the legislature to pass laws mandating church attendance.[Massachusetts Const. (1780), available at http://www.nhinet.org/ccs/docs/ma-1780.htm, last accessed July 7, 2004.] What then did Jefferson’s letter to the Danbury Baptists really mean? Jefferson was certainly a bit of a skeptic about religion (and was incorrectly reviled as an atheist by some of his opponents in the 1800 presidential election). He does not, however, seem to have been as hostile to government entanglements with religion as those who claim to be following his words today. During the Jefferson Administration (and that of James Madison, principal author of the Bill of Rights), the House of Representatives chambers were regularly used for church services—and this continued until after the Civil War. Both Jefferson and Madison attended these services, at which different Protestant ministers officiated. Starting in 1826, Roman Catholic priests joined in the rotation. There were church services in executive branch buildings during the Jefferson Administration as well, and in the Supreme Court chambers as well.[“Religion and the Founding of the American Republic,” part 2, available at http://lcweb.loc.gov/exhibits/religion/rel06-2.html, last accessed July 6, 2004.] It would seem that Jefferson’s notion of “separation of church and state” was hardly the high wall that the ACLU seems to favor-—and Jefferson was, of the Framers, one of the least friendly to religion. More typical would have been President George Washington, who on a number of occasions issued Thanksgiving proclamations loaded with religious language: “that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech him to pardon our national and other transgressions….”[The Writings of George Washington from the Original Manuscript Sources, 1745-1799, Series 8a, Correspondence and Miscellaneous Notes, 1773-1799, October 3, 1789, available at http://memory.loc.gov/ammem/gwhtml/gwhome.html, last accessed July 7, 2004.] Washington’s Farewell Address to Congress also presented a secular benefit to the promotion of religion: “And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.”[Washington’s Farewell Address to Congress, available at http://www.yale.edu/lawweb/avalon/washing.htm, last accessed July 7, 2004.] Other Framers also made clear their belief that religion and government were closely tied principles, such as Benjamin Franklin’s plea at the Constitutional Convention: In the beginning of the contest with Great Britain, when we were sensible of danger, we had daily prayer in this room for the divine protection. Our prayers, sir, were heard, and they were graciously answered. All of us who were engaged in the struggle must have observed frequent instances of a superintending Providence in our favor…. I have lived, sir, a long time, and, the longer I live, the more convincing proofs I see of this truth--that God governs in the affairs of men. And if a sparrow cannot fall to the ground without his notice, is it probable that an empire can rise without his aid? We have been assured, sir, in the sacred writings, that “except the Lord build the house, they labor in vain that build it.”There are many examples available of official actions of the First Congress (the same one that wrote the First Amendment) that suggest that if the First Amendment was supposed to erect a wall of “separation of church and state,” someone neglected to tell the authors: Resolve, That the form of the oath to be taken by the members of this Houses, as required by the third clause of the sixth article of the Constitution of Government of the United States, be as followeth, to wit: "I, A B a Representative of the United States in the Congress thereof, do solemnly swear (or affirm, as the case may be) in the presence of Almighty GOD, that I will support the Constitution of the United States. So help me GOD.” [Journal of the House of Representatives of the United States, 1789-1793, Monday, April 6, p. 7, available at http://memory.loc.gov/ammem/amlaw/lwhj.html, last accessed July 7, 2004.]There are example as well from state governments in the early Republic that at least suggest that government regarded the promotion of religion as a legitimate activity, such as an 1820 Indiana law that prohibited concealed carrying of deadly weapons, with fines of up to $100 (a sizeable sum, back then) to be paid “for the use of county seminaries.” (Presumably, the legislature saw some connection between a vile practice and the need to promote morality in the population.) [Laws of the State of Indiana, Passed at the Fourth Session of the General Assembly (Jeffersonville: Isaac Cox, 1820), 39. The provision concerning fines going to seminaries was repealed in 1831. Revised Laws of Indiana, in Which Are Comprised All Such Acts of a General Nature as Are in Force in Said State; Adopted and Enacted by the General Assembly at Their Fifteenth Session (Indianapolis: Douglass & Maguire, 1831), 192.] Supreme Court Justice Joseph Story’s Commentaries on the Constitution of the United States (1833) is still considered an important source by the federal courts for understanding original intent. Story argued that it was probable that when the Constitution and the First Amendment were adopted, “the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship.” “The real object of the amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government.” [Joseph Story, Commentaries on the Constitution of the United States… (Boston: Hilliard, Gray And Company, 1833), §§ 1865, 1871, available at http://www.constitution.org/js/js_000.htm, last accessed July 7, 2004.] So what happened to this understanding of the First Amendment? The U.S. Supreme Court’s first use of Jefferson’s quote about “separation” of church and state was in a case where today, the ACLU would almost certainly file a friend of the court brief on the losing side. The case involved a group that, at the time, most Americans considered sexual perverts—and worse, who insisted that marriage should not be limited to a man and a woman (at least, not just one woman). Congress prohibited polygamy in the territories, at least partly because the Church of Jesus Christ of Latter Day Saints (Mormons) were openly engaged in plural marriage. In Reynolds v. U.S. (1878), the U.S. Supreme Court upheld that ban on polygamy. Rather than admit that American laws were based on Christianity (a position that could have been supported with reference to Justice Story’s Commentaries), the Court claimed that the law against polygamy was not based on religion: “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.”[ Reynolds v. U.S., 98 U.S. 145, 165 (1878). ] Polygamy led to patriarchy, the Court decided,[Reynolds v. U.S., 98 U.S. 145, 166, 167 (1878).] and because Jefferson had written about the distinction between beliefs and actions—and polygamy was definitely an action, and not just a belief, they quoted Jefferson’s letter to the Danbury Baptists to defend their position. Here was the first transmission error. Jefferson’s letter was sympathetic to the Danbury Baptists because Connecticut was playing favorites, giving one denomination legal and economic advantages not enjoyed by others. In the Reynolds case, Congress passed a law that applied equally to everyone in the territories, regardless of their religious beliefs. It did not matter if you were a Baptist, Catholic, Mormon, Muslim, or an atheist, federal law prohibited polygamy. That the polygamy law had more impact on Mormons at the time than other groups did not mean that the law discriminated against a particular religion. In modern terms, the polygamy statute had disparate impact (it affected one group more than another), but it was not narrowly written just for that group. The next use of Jefferson’s “separation” metaphor was Everson v. Board Of Education Of Ewing Township (1947). In this case, a New Jersey township board of education provided for transportation services for children to both public and private schools—in some cases, Catholic schools. The lawsuit sought to prohibit payment for busing of children to Catholic schools, claiming that such payments violated the establishment of religion clause. The Supreme Court made a claim completely contrary to the available historical evidence, relying instead on the precedent from Reynolds: 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 from they may adopt to teach or practice religion. [Everson v. Board Of Education Of Ewing Tp., 330 U.S. 1, 16, 17 (1947).]Nor did the Everson decision give any authority for its claim that the First Amendment required complete neutrality regarding religion. The Supreme Court pointed to Jefferson’s 1802 letter to the Danbury Baptists, which had only addressed the question of whether states should give legal preference to one church, and argued that the First Amendment should be understood as meaning no law could aid any religion—-a position that Jefferson did not take in that letter, and that Reynolds did not take, either. While both Jefferson and Madison (principal author of the Bill of Rights) had certainly played a role in disestablishing the Anglican Church in Virginia, the rest of the First Congress—-who also voted on the First Amendment—-did not share Jefferson and Madison’s views on disestablishing churches at the state level. There is also no evidence that Jefferson and Madison would have agreed with this claim that “no law could aid any religion”—and the actions of both Jefferson and Madison Administrations, as we have previously seen, suggest otherwise. While the Everson Court upheld the law—-because the money was only being spent on transportation to and from a Catholic school—-the decision established an incorrect precedent based on Reynolds—-and the game of telephone continued. The following year, McCollum v. Board Of Education (1948) involved the use of public school facilities in Illinois for religious instruction. With parental consent, clergymen representing the Protestant, Catholic, and Jewish faiths provided religious instruction to children of their respective faiths. The Supreme Court ruled that this was an unconstitutional action. “This is beyond all question a utilization of the tax- established and tax-supported public school system to aid religious groups to spread their faith. And it falls squarely under the ban of the First Amendment (made applicable to the States by the Fourteenth) as we interpreted it in Everson v. Board of Education….” [McCollum v. Board Of Education, 333 U.S. 203, 210, 211 (1948).] But since Everson had misinterpreted Reynolds, which had misinterpreted Jefferson’s letter to the Danbury Baptists—-which only expressed a personal opinion, not a legal requirement, about state preference for a particular denomination, it is hard to take this decision seriously. Yet, decision after decision of the U.S. Supreme Court is based on McCollum—-a embarrassing chain of misinterpretations of what was, at best, only one point of view about the meaning of the First Amendment. It is high time that “separation of church and state” be given a proper (and secular) burial. The history behind “separation of church and state” is embarrassingly sloppy, and a clear examination of original intent shows that the First Amendment was not intended to provide either complete separation, nor complete neutrality. --- Clayton E. Cramer is adjunct history faculty at Boise State University and George Fox University (Boise). UPDATE: Jonathan Rowe's critique raises some important points. One is that Jefferson and Madison were primary players in the disestablishment of the Anglican Church, and that the Everson decision points to Jefferson’s "Virginia Statute on Religion Freedom" and Madison’s "Memorial and Remonstrance" as evidence for their position. Jefferson's "Virginia Statute on Religion Freedom" clearly opposes establishment of religion: That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish enlarge, or affect their civil capacities.This does not, however, fit into the ACLU's model of "separation of church and state," in which a cross as part of an historical event may not be allowed in a county seal, or in which the Ten Commandments are not allowed in a public park or building. Madison's "Memorial and Remonstrance" also clearly opposes religious establishments--but note what its argument is against religious establishment: 12. Because the policy of the Bill is adverse to the diffusion of the light of Christianity. The first wish of those who enjoy this precious gift ought to be that it may be imparted to the whole race of mankind.This is hardly the argument of someone who regards all religions, and no religion, as equivalent in value. Virginia definitely disestablished the Anglican Church. Most other states did so within a few years--but not all, and even those that disestablished continued to impose obligations that run contrary to the ACLU's notion of strict separation of church and state. Rowe also points out that the First Amendment is now applicable to the states, through selective incorporation under the Fourteenth Amendment. No question about that--but what meaning of the First Amendment? An originalist understanding would look at how it was understood when Congress passed it in 1789, and how it was understood when Congress passed the Fourteenth Amendment in 1868. It would be difficult to defend the ACLU's view based on the laws in effect in either year. Labels: polygamy How To Defeat McCain/Feingold Act It prohibits most PACs from running campaign ads within 60 days of the general election. This guy (a right-wing gun owning homosexual, of all things) points to the Wall Street Journal's proposal on how to get around the Supreme Court's upholding of this law: ... if a right-wing pornographer made a pro-Bush film featuring erotic scenes and put it on the Internet within 60 days of an election, would the Supreme Court call it protected speech? Just asking. Financially Strapped Schools Discover Multimillionaire Art Collection From AP: To the delight of school officials, a multimillion-dollar treasure trove of 19th- and 20th-century art has been discovered in basements, boiler rooms, closets and hallways in Philadelphia's cash-strapped public schools.Hmmm. From what I've read, basic literacy is the more immediate problem in most of Philadelphia's schools. Perhaps having turning some of the more valuable art into capital to buy supplies would help. The inventory began quietly in March 2003 and is similar to one conducted for the Chicago school system, where Philadelphia schools chief executive Paul Vallas and Paquin previously worked.Something tells me that this wouldn't be the case in a lot of the California school districts, where they haven't had two centuries to accumulate valuable art. Is Spreading Manure a Form of Free Speech? I ask because Professor Volokh has a very thoughtful entry about a man arrested for spreading manure on the streets just before a gay pride parade in Arkansas. One of the organizers of the parade saw this as evidence of a need for an Arkansas hate crimes law. Professor Volokh was not impressed with such a claim, pointing out that hate crime laws, while constitutional, aren't necessarily a good idea. But I did find one odd little remark: Before the anti-homosexuality people start seizing on this as further evidence of those dominant gays trying to oppress the rest of us, let me mention that hate crimes laws were originally most seriously pushed by groups that see themselves as defending Jews and ethnic minorities.If the police had arrested this guy for carrying signs or other expressions of disapproval of homosexuality (as has happened in other parts of the U.S.), there might be some basis to regard this as oppression. But spreading manure is hardly free speech, unless you think burning an American flag is a form of free speech. Ooops! Liberals do believe that, and even have a Supreme Court decision to back them up. So I guess spreading manure is a form of free speech, and this is oppression! Obviously, I'm kidding. I'm just pointing out the absurdity of the liberal position. Spreading manure on the street is disgusting and perhaps even represents a minor health hazard. Ditto for burning an American flag, whose smoke might conceivably be a health hazard for those with some lung disorders. To call either of these protected free speech opens up the door to an enormous range of offensive "symbolic" expressions: mooning someone; baggies containing human excrement; etc. UPDATE: Professor Volokh says that Scalia and Thomas voted to overturn the Texas flag burning statute. I didn't know that. Very interesting. Still, the core problem with this decision is that is a "fighting words" sort of symbolism, one likely to provoke violence. While I think such laws are stupid, I think the notion that flag burning is constitutionally protected is silly. Here's a thought experiment for you: other than making people angry enough to get violent, what does burning an American flag express that couldn't be said on a protest sign? Something like, "Amerika is a fascist country," "Amerika is evil." UPDATE 2: After careful consideration, I've decided that spreading manure on the streets before a gay pride parade really is constitutionally protected free speech, just like burning an American flag, or carrying a swastika flag through Skokie, Illinois, or showing up at gay person's funeral, and behaving as boorishly as the Rev. Fred Phelps did at Randy Shilits's services, or wearing Klan robes and hoods in South Central Los Angeles. And because it's constitutionally protected free speech, the police need to provide protection for people exercising their right of free speech--even if the National Guard has to be called in to suppress the resulting riots. I hope that makes the liberals very, very happy. Labels: freedom of speech Picked Up Another State Ohio now recognizes Florida, Washington, and Michigan concealed handgun licenses. This gives me 32 states in which I can carry concealed, and one in which I can carry openly (New Mexico). states that trust me Iranian Intelligence Officers Captured in Iraq FoxNews is reporting: WASHINGTON — American and Iraqi joint patrols, along with U.S. Special Operations teams, captured two men with explosives in Baghdad on Monday who identified themselves as Iranian intelligence officers, FOX News has confirmed.Well, that's an act of war. Hate Crime in Boise? No link on this; I'm actually reporting stuff first hand. The offices of the Save the Ten Commandments Coalition here in Boise were broken into over the 4th of July weekend. According to highly placed officials of the Coalition, Boise Police Department and the U.S. Department of Justice are investigating the break-in as a religiously motivated hate crime. A couple of windows were broken out, and there was a bit of blood as a result, but nothing was stolen, and nothing was vandalized. My first reaction was "why assume a hate crime?" But the more I thought about it, if this was an ordinary burglary, why would you break into a place, and steal nothing? It also seems to have been more than just petty vandalism. When I was over at their offices last night, both a large window in the outer lobby had been smashed out, but also the glass in the door leading inside. Someone smashed through one window, then smashed through another--making a 90 degree turn in the process. (This building, like a number in Boise, has an outer lobby to keep the extremes of our climate outside.) Tuesday, July 06, 2004
Humor Mad magazine used to have a semi-regular feature titled, "Bookshelf of very thin books," including such titles as, Germans Who Admit They Backed Hitler. Here's a recent collection someone forwarded to me: FRENCH WAR HEROES Good News From Iraq, Part 5 It's here. An excerpt: Saddam and his top henchmen are not the only ones to come before the new justice system: |
