Freethought & Rationalism Archive

hezekiah jones · 02-28-2002, 03:54 AM

All one need do is read Scalia's opinion in Edwards v. Aguillard to get a handle on where this guy is coming from. Riddled with secondhand illogic, lies (Scalia claims the Court had "held" that "secular humanism" is a religion - utter nonsense), and weasel words, you have to wonder if the guy isn't totally embarrassed he actually wrote the thing (and Rehnquist signed on to it, btw).

He obviously revels in his reputation as a facetious gadfly, and its a damn good thing he's in the minority on most church-state issues. He is, I would imagine, the odds-on favorite to assume the Chief Justice's chair if the Shrub's Federalist Society puppetmasters get the chance.

Like millions of Americans, I too lost a lot of respect for this Court after Bush v. Gore. That was a sad, sad day for democracy in this country, and Scalia is responsible for it.

fromtheright · 03-01-2002, 09:37 AM

Reading Scalia's dissent in Edwards now and so far, having barely started, haven't found the secular humanism reference. I look forward to finding that and what his reference is. So far, the only disagreement I have is with his statement that "It is clear, however, that members of the Louisianan Legislature were not impermissibly motivated for purposes of the Lemon test if they believed that approval of the Balanced Treatment Act was required by the Free Exercise Clause" because IMO this is not a free exercise issue since there is no private action involved.

hezekiah jones · 03-01-2002, 11:08 AM

The statements are those of the Balanced Treatment Act's sponsor, Senator Bill Keith, which Scalia thoughtfully incorporated into his dissent with nary an objection.

The Court has never "held" that "secular humanism" is a religion. "Secular humanism" (whatever that is) was included in a list of religions that do not require a belief in god, in a footnote to a case (Torcaso v. Watkins) that declared unconstitutional a requirement for state officeholders to swear belief in god.

For Scalia to let such a wilfully misleading statement (amongst all the rest of Keith's nonsense) appear in the body of his dissent without comment is clearly evidence of his willingness to let his agenda cloud his reasoning.

"Senator Keith repeatedly and vehemently denied that his purpose was to advance a particular religious doctrine," Scalia writes, after quoting Keith's litany of prevarication and illogic. And that's good enough for Scalia. As I said, the dissent is an embarrassment.

[ March 01, 2002: Message edited by: hezekiahjones ]

hezekiah jones · 03-01-2002, 11:27 AM

One other thing. Had Scalia done his homework, as Justice Powell did, since he makes numerous references to the case, he would have found the following in the text of McLean v. Arkansas:

Quote:

Citizens For Fairness In Education is an organization based in Anderson, South Carolina, formed by Paul Ellwanger, a respiratory therapist who is trained in neither law nor science. Mr. Ellwanger is of the opinion that evolution is the forerunner of many social ills, including Nazism, racism and abortion. About 1977, Ellwanger collected several proposed legislative acts with the idea of preparing a model state act requiring the teaching of creationism as science in opposition to evolution. One of the proposals he collected was prepared by Wendell Bird, who is now a staff attorney for [the Institute for Creation Research]. From these various proposals, Ellwanger prepared a "model act" which calls for "balanced treatment" of "scientific creationism" and "evolution" in public schools. He circulated the proposed act to various people and organizations around the country.

Mr. Ellwanger's views on the nature of creation science are entitled to some weight since he personally drafted the model act which became [Arkansas] Act 590. His evidentiary deposition with exhibits and unnumbered attachments ... speaks to both the intent of the Act and the scientific merits of creation science. Mr. Ellwanger does not believe creation science is a science. In a letter to Pastor Robert E. Hays he states, "While neither evolution nor creation can qualify as a scientific theory, and since it is virtually impossible at this point to educate the whole world that evolution is not a true scientific theory, we have freely used these terms - the evolution theory and the theory of scientific creationism - in the bill's text." He further states in a letter to Mr. Tom Bethell, "As we examine evolution (remember, we're not making any scientific claims for creation, but we are challenging evolution's claim to be scientific...")

Ellwanger's correspondence on the subject shows an awareness that Act 590 is a religious crusade, coupled with a desire to conceal this fact. In a letter to State Senator Bill Keith of Louisiana, he says, "I view this whole battle as one between God and anti-God forces, though I know there are a large number of evolutionists who believe in God." And further, "... it behooves Satan to do all he can to thwart our efforts and confuse the issue at every turn." Yet Ellwanger suggests to Senator Keith, "IF you have a clear choice between having grassroots leaders of this statewide bill promotion effort to be ministerial or non-ministerial, be sure to opt for the non-ministerial. It does the bill effort no good to have ministers out there in the public forum and the adversary will surely pick at this point ... Ministerial persons can accomplish a tremendous amount of work from behind the scenes, encouraging their congregations to take the organizational and P.R. initiatives. And they can lead their churches in storming Heaven with prayers for help against so tenacious an adversary."

The legislation under consideration in Edwards v. Aguillard was essentially a carbon copy of Arkansas Act 590. In fact Keith's statements, which as noted are part of Scalia's dissent, contain a woefully garbled version of Ellwanger's letter to Pastor Hays, quoted above. Yet Scalia claims he was unable to unearth any evidence to support the contention that Keith's motives were anything but purely and "sincerely" secular. Har har.

Doug · 03-02-2002, 02:56 PM

Fromtheright said:

Quote:

...but otherwise fond of telling us conservatives that original intent means nothing...

Could you elaborate on this statement? I assume you are referring to the original intent of the Founding Fathers in SCOTUS decisions. Are you suggesting that people that lean left of center typically feel that this means nothing? Can you please show me some quotes from either posters on this forum or otherwise that demonstrate this statement?

I realize that folks on each side have different interpretations of original intent, but it is my impression that both sides feel it's important in Federal court decisions (along with the document itself and court precedence). If it wasn't important to secularists that are interested in maintaining church/state separation, then why is so much of the library on this website dedicated to quotes from the Founders?

fromtheright · 03-02-2002, 04:20 PM

Doug,

Yes, this post from hezekiahjones on the "Need assistance to rebut a claim" thread in Church/State Separation, from 2-20-02:

Quote:

Since those appear to be reports of Madison's statements in the House debates, I suspect they were culled from the Annals of Congress?
The Annals of Congress were assembled from contemporary newspaper reports, and especially, in the case of the House debates, from Thomas Lloyd's Congressional Register, which, Leonard Levy tells us, was not an official Congressional publication, despite its title.

Madison noted of Lloyd that he was "indolent and sometimes filled up blanks in his notes from his memory or imagination," and that Lloyd had become "a votary of the bottle and perhaps made too free use of it sometimes at the period of his printed debates."

The so-called doctrine of original intent, as practiced by pseudo-historians like William Rehnquist for example, is often not the rigorously objective pursuit its adherents claim it to be.

It is such arguments, typically made by advocates of the "living Constitution" viewpoint, usually liberals, to which I referred.

But yes, FTR, I must say you guys have done an excellent job marshalling historical sources for your side of this debate and, as I have admitted elsewhere, have caused me to re-think my beliefs regarding at least James Madison's opinion). Are you all also willing to debate from original intent on such issues as the death penalty, the Second Amendment, Tenth Amendment/federalism, and other Constitutional issues, without arguing that the Constitution has "grown" with the times? If so, then I stand corrected and offer my apologies.

[ March 02, 2002: Message edited by: fromtheright ]

[ March 02, 2002: Message edited by: fromtheright ]

[ March 02, 2002: Message edited by: fromtheright ]

Doug · 03-02-2002, 08:37 PM

I interpret that quote differently than you do. It looks to me as if the poster is simply arguing that the interpretation of original intent by Renquist is incorrect, not that original intent should be ignored.

Anyway, I agree with you on your statement at the end of your post. People of all political stripes are often inconsistent in their application of Constitutional principles. For example, conservatives are quick to play the states' rights card when it suits their agenda, but are equally quick to use the power of the purse to mold state laws. Liberals use this trump card all the time, but at least they don't pretend to be champions of states' rights.

I consider myself a political moderate so maybe I'm not the right person to debate this issue as we are trying to ascertain the liberal stance on the issues you listed (though I'm certainly pretty liberal on some issues and more conservative on others).

I am personally against the death penalty, but feel the Constitution is a bit hazy on the issue. The only provision that might go against it (and was indeed used in the 70's to outlaw it briefly) is the cruel and unusual punishment clause. I'm not enlightened as to the original intent of the ammendment, but I'd bet that the death penalty as currently applied would probably have been acceptable to the Founders, therefore not being included in the cruel and unusual clause.

If this is the case (and I'm just speculating that it is), then the only recourse for an anti-death penalty person like me is to convince my state government not to have it or work to get a Constitutional ammendment passed. Naturally, the Federal government doesn't have the right to force states to adopt the death penalty either.

As to the rest, I'd love for you to tell us where you feel the original intent of the Founders stood on these subjects (with annotation of course). I've been meaning to do some research on these issues for some time and will try to do so soon. I reread the Federalist Papers a while back and feel that's a great source with regard to Federalism and states' rights. I need to go back and brush up before getting into it.

As to the Second Ammendment, I'm not so sure about the intent. I do read the word "regulated" in the Second Ammendment and also know that historically, the arms of the populace were always stored in the local armory, though rural folks certainly had muskets for hunting and self defense. This is an area I'll try to research on the internet.

It's late, so I'll check back tomorrow.

fromtheright · 03-02-2002, 09:55 PM

Doug,

I'll start with your last point, but likewise it is too late to give a very good response except to point you to a website with listed law review articles on both sides of the Second Amendment debate, <a href="http://www.constitution.org/2ll/2ndschol/2nd_index.htm" target="_blank">Law Review Articles</a>. A couple of excellent books are Stephen Halbrook's That Every Man Be Armed and Joyce Lee Malcolm's To Keep and Bear Arms, a study of the English background.

As to the death penalty, I am for it and based on what is to me the clear inference of the Eighth Amendment, as well as its prevalence at that time, I believe it is Constitutional. As to its deterrent effect I don't know enough about the literature to judge, but it seems incredible that it would encourage capital crimes, in particular murder.

I disagree with your statement that "conservatives are quick to play the states' rights card when it suits their agenda, but are equally quick to use the power of the purse to mold state laws" because I don't see conservatives doing the latter. Any example or two that come to mind?

One original intent issue that has bothered me is the gross expansion of the general welfare clause, despite Madison's explanation in the Federalist (number 42, I think) of its intent as part of the explanation for the enumerated powers which followed in Article I, Sec. 8. For the longest time, though, I have thought this was a modern misinterpretation until reading Alexander Hamilton's argument for the National Bank.

Late here too,
Gene

hezekiah jones · 03-03-2002, 07:20 AM

Quote:

Originally posted by Doug:
I interpret that quote differently than you do. It looks to me as if the poster is simply arguing that the interpretation of original intent by Rehnquist is incorrect, not that original intent should be ignored.

All I am saying is that an unbalanced reliance on original intent seems to me improperly narrow, and, as the careers of Edwin Meese and Robert Bork attest, just as likely to be shot through with ideological presuppositions as any other individual method.

Furthermore exclusively attempting to get inside the heads of 18th century Americans would render the Constitution inapplicable and practically useless for our present purposes. Justice Brennan said:

Quote:

We current Justices read the Constitution in the only way that we can: as Twentieth Century Americans. We look to the history of the time of the framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time. For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be the measure to the vision of their time.

Another obvious question is, "Which Framer's intent?" There were 55 delegates coming and going out of that hotbox in Philadelphia in 1787. Some of them probably hadn't even read the Constitution. And they certainly weren't all following a monolithic agenda.

Not only were the so-called official records kept often inaccurate and sloppy, but the pamphleteering that was underway at the time was overwhelming. One single clear message demonstrating "original intent" simply does not exist.

Robert H. Jackson, writing in Youngstown Sheet & Tube Co. v. Sawyer:

Quote:

Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly specification yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other.

The point is that original intent, despite its defenders' pretensions to objectivity, is just as susceptible to preexisting ideological biases as any other individual method adopted at the relative exclusion of others.

<speling>

[ March 03, 2002: Message edited by: hezekiahjones ]

copernicus · 03-03-2002, 08:35 AM

Quote:

Originally posted by hezekiahjones:
The point is that original intent, despite its defenders' pretensions to objectivity, is just as susceptible to preexisting ideological biases as any other individual method adopted at the relative exclusion of others.

Leonard Levy has written a very good book on this subject called <a href="http://www.nytimes.com/books/98/12/06/specials/levy-intent.html" target="_blank">Original Intent and the Framer's Constitution</a>. Levy goes into great detail to support Hezekiah's point. Conservatives often skew "original intent" by focusing on just those historical records that support their interpretation and ignoring those that refute it. So it really comes down to a matter of whose intent one focuses on. Most people automatically assume that it is the intent of the framers. Madison himself believed that the framers' intent was less important than the intent of the ratifiers.

Levy wrote another book--Origins of the Bill of Rights (see <a href="http://www.google.com/search?q=cache:ZUK3pjbOyTkC:muse.jhu.edu/demo/rap/3.4winkle.pdf+levy+original+intent+constitution&hl =en" target="_blank">John Winkle's review</a>) that explores the original context of the First Amendment statement on religious liberty. He pointed out that modern conservatives have used the original intent argument to completely contradict the very clear intent of the framers to keep religion out of politics. Modern conservatives take the position that the "establishment clause" of the First Amendment was only intended to ban the favoring of one religion over another, not to ban religious influence on government entirely. Levy amassed an impressive amount of evidence to support the case that most people at the time understood it as a blanket ban on any religious influence in government.

03-01-2002, 11:08 AM	#13
hezekiah jones Veteran Member Join Date: Feb 2001 Location: WI Posts: 4,357	The statements are those of the Balanced Treatment Act's sponsor, Senator Bill Keith, which Scalia thoughtfully incorporated into his dissent with nary an objection. The Court has never "held" that "secular humanism" is a religion. "Secular humanism" (whatever that is) was included in a list of religions that do not require a belief in god, in a footnote to a case (Torcaso v. Watkins) that declared unconstitutional a requirement for state officeholders to swear belief in god. For Scalia to let such a wilfully misleading statement (amongst all the rest of Keith's nonsense) appear in the body of his dissent without comment is clearly evidence of his willingness to let his agenda cloud his reasoning. "Senator Keith repeatedly and vehemently denied that his purpose was to advance a particular religious doctrine," Scalia writes, after quoting Keith's litany of prevarication and illogic. And that's good enough for Scalia. As I said, the dissent is an embarrassment. [ March 01, 2002: Message edited by: hezekiahjones ]</p>

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02-28-2002, 03:54 AM	#11
hezekiah jones Veteran Member Join Date: Feb 2001 Location: WI Posts: 4,357	All one need do is read Scalia's opinion in Edwards v. Aguillard to get a handle on where this guy is coming from. Riddled with secondhand illogic, lies (Scalia claims the Court had "held" that "secular humanism" is a religion - utter nonsense), and weasel words, you have to wonder if the guy isn't totally embarrassed he actually wrote the thing (and Rehnquist signed on to it, btw). He obviously revels in his reputation as a facetious gadfly, and its a damn good thing he's in the minority on most church-state issues. He is, I would imagine, the odds-on favorite to assume the Chief Justice's chair if the Shrub's Federalist Society puppetmasters get the chance. Like millions of Americans, I too lost a lot of respect for this Court after Bush v. Gore. That was a sad, sad day for democracy in this country, and Scalia is responsible for it.

03-01-2002, 09:37 AM	#12
fromtheright Senior Member Join Date: Jan 2002 Location: Huntsville, AL Posts: 633	Reading Scalia's dissent in Edwards now and so far, having barely started, haven't found the secular humanism reference. I look forward to finding that and what his reference is. So far, the only disagreement I have is with his statement that "It is clear, however, that members of the Louisianan Legislature were not impermissibly motivated for purposes of the Lemon test if they believed that approval of the Balanced Treatment Act was required by the Free Exercise Clause" because IMO this is not a free exercise issue since there is no private action involved.

03-02-2002, 08:37 PM	#17
Doug Senior Member Join Date: Jun 2000 Location: New York, NY Posts: 629	I interpret that quote differently than you do. It looks to me as if the poster is simply arguing that the interpretation of original intent by Renquist is incorrect, not that original intent should be ignored. Anyway, I agree with you on your statement at the end of your post. People of all political stripes are often inconsistent in their application of Constitutional principles. For example, conservatives are quick to play the states' rights card when it suits their agenda, but are equally quick to use the power of the purse to mold state laws. Liberals use this trump card all the time, but at least they don't pretend to be champions of states' rights. I consider myself a political moderate so maybe I'm not the right person to debate this issue as we are trying to ascertain the liberal stance on the issues you listed (though I'm certainly pretty liberal on some issues and more conservative on others). I am personally against the death penalty, but feel the Constitution is a bit hazy on the issue. The only provision that might go against it (and was indeed used in the 70's to outlaw it briefly) is the cruel and unusual punishment clause. I'm not enlightened as to the original intent of the ammendment, but I'd bet that the death penalty as currently applied would probably have been acceptable to the Founders, therefore not being included in the cruel and unusual clause. If this is the case (and I'm just speculating that it is), then the only recourse for an anti-death penalty person like me is to convince my state government not to have it or work to get a Constitutional ammendment passed. Naturally, the Federal government doesn't have the right to force states to adopt the death penalty either. As to the rest, I'd love for you to tell us where you feel the original intent of the Founders stood on these subjects (with annotation of course). I've been meaning to do some research on these issues for some time and will try to do so soon. I reread the Federalist Papers a while back and feel that's a great source with regard to Federalism and states' rights. I need to go back and brush up before getting into it. As to the Second Ammendment, I'm not so sure about the intent. I do read the word "regulated" in the Second Ammendment and also know that historically, the arms of the populace were always stored in the local armory, though rural folks certainly had muskets for hunting and self defense. This is an area I'll try to research on the internet. It's late, so I'll check back tomorrow.

03-02-2002, 09:55 PM	#18
fromtheright Senior Member Join Date: Jan 2002 Location: Huntsville, AL Posts: 633	Doug, I'll start with your last point, but likewise it is too late to give a very good response except to point you to a website with listed law review articles on both sides of the Second Amendment debate, <a href="http://www.constitution.org/2ll/2ndschol/2nd_index.htm" target="_blank">Law Review Articles</a>. A couple of excellent books are Stephen Halbrook's That Every Man Be Armed and Joyce Lee Malcolm's To Keep and Bear Arms, a study of the English background. As to the death penalty, I am for it and based on what is to me the clear inference of the Eighth Amendment, as well as its prevalence at that time, I believe it is Constitutional. As to its deterrent effect I don't know enough about the literature to judge, but it seems incredible that it would encourage capital crimes, in particular murder. I disagree with your statement that "conservatives are quick to play the states' rights card when it suits their agenda, but are equally quick to use the power of the purse to mold state laws" because I don't see conservatives doing the latter. Any example or two that come to mind? One original intent issue that has bothered me is the gross expansion of the general welfare clause, despite Madison's explanation in the Federalist (number 42, I think) of its intent as part of the explanation for the enumerated powers which followed in Article I, Sec. 8. For the longest time, though, I have thought this was a modern misinterpretation until reading Alexander Hamilton's argument for the National Bank. Late here too, Gene

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