Wednesday, August 17, 2005

False Middle

UPDATE: attempted to correct typos; replies and responses.

SECOND UPDATE: more replies and responses.

Third UPDATE: this thread continues here.

Guest blogging on SC&A, boomr properly pleads for reasoned debate. After that we part company--because he insists a new "centrist" party is the fastest path to civility and moderation. Below, I dispute some of boomr's analysis and recommendations.
  • Party differences: Boomr wants it both ways, arguing Republicans and Democrats are different yet identical. First, he claims Republicans are "ruled by Biblical doctrine and by corporate bottom lines," while Democrats are motivated "by reaction to what the Republicans are doing and by social policies without focus." Next he insists neither group cares about "what may be the best thing for all the people in our country," and both favor "exclusion of other political voices." Though I disagree with boomr's description of Republicans, I'm certain both parties genuinely want the best for America and believe their platform would best achieve it. They just disagree about what's best and partisans (like me) think one approach superior to the other; boomr's differing characterizations (however inaccurate) demonstrate he too does distinguish.1

    As for excluding other voices, boomr's point is either trivial (each party wants to win elections, and therefore exclude the voice of the other party's candidate) or flatly wrong regarding Republicans. It is Republicans and conservatives, after all, who favor debate followed by elections, where all voices may be heard and counted. By contrast, Democrats distrust the people and propel their platform via the unelected judiciary--thus narrowing the relevant voices from the hundreds of millions to nine.

    Hey, look at me: a voice excluded by Democrats. Everyone's entitled to choose, but the parties are different.

  • Outlawing loyalty: Boomr blames the current acrimony on each party's insistence on loyalty. So boomr's proposed party would ban it, an idea with which MaxedOutMama appears to agree. The new group's "central tenent" would allow disagreements which, allegedly, will promote "benevolent compromise."

    I have no objection, but it's either meaningless or impossible. Neither party suppresses opinions or debate on the latest questions.2 They do enforce party discipline once a policy is chosen (however accomplished). Why assume that's not "benevolent" or a "compromise?" On the other hand, if the centrist central tenant encourages members to undermine settled positions, boomr's new party will have a half-life measured in months. Boomr's approach creates a college-dorm bull-session, not an electable coalition.

  • A "No Religious Test" Test: I share boomr's commitment to religious freedom. The vast majority agree that certain entanglements between government and religion are unwise and unconstitutional. Normally, the government can neither force, nor prevent, church attendance. But that's the easy part.

    Boomr's proposed party would be well more radical, "absolutely preclud[ing]" legislating based on "one group of citizens' idea of morality." This hostility to religious motivation, and his new leap to "morals," is neither explained, justified nor workable, as I've previously discussed. Neither law nor any proffered policy objective exclude religion from the public sphere, for example, on coins and in Congress. See, e.g., Walz v. Tax Comm'n, 397 U.S. 664, 671 (1970); Abington Sch. Dist. v. Schempp, 374 U.S. 203, 213 (1963); Zorach v. Clausen, 343 U.S. 306, 312-13 (1954). Boomr's idea is unconstitutional.

    And neither "religion" nor "morals" are easily defined. Take, for example, the "Golden Rule," which the various holy books require of Jews, Christians and Muslims. Would boomr's centrist party oppose laws that implement or further interpersonal reciprocity (say, for example, noise codes prohibiting sounds above a certain decibel level)? Would it matter if the lawmakers were "motivated" by the Golden Rule? If so, how would boomr propose to distinguish permissible and impermissible intent?

    As another example, six of the Ten Commandments (see Deuteronomy 5:16-21) neither mention God nor any particular faith (e.g., "Thou shalt not kill."). And those six are codified as crimes under state and Federal law. Are such laws impermissibly "religious?" If not, are they unacceptably "moral?" If a legislator wants theft to remain a crime, is he imposing his religion or morals on others?

    Boomr says a centrist party should "tolerate a range of ideas [and] morals." Fine. My idea is that adultery is immoral and hurts others (thus violating the Golden Rule). So suppose I favor criminalizing adultery.3 Would boomr tolerate my idea and morality? Or, as the late John Rawls once argued, are there "reasonable" and "ignorable" moralities? How could such a line be drawn? Wouldn't everyone draw it a bit different? That's not coherent, it's chaos.

  • Economics in the middle: Boomr's right about rejecting class warfare. But he's mostly wrong in arguing America needs a new "balance" between workers and business. That balance already exists, invented by Hayek and Reagan.

    Despite widespread scorn for the "trickle down" economics, President Reagan was right that a rising tide lifts all boats, says Seth Norton in the CATO Journal:
    The incomes of the poor are intimately linked to the incomes of the rich. While the relationship is not one-for-one, it is notable. The incomes of the poor rise more with increases in the incomes of the rich than vice versa. More importantly, the incomes of the rich have a discernible effect in reducing the UN's conventional measure of poverty. Notably, growth in the incomes of the rich reduces the effects of poverty proportionally more than is the case for increases in the incomes of the poor. In addition, economic growth clearly reduces poverty. The results for sub-Saharan Africa are not appreciably different from the rest of the world.

    The term “trickle-down‚” is a misnomer: growth actually entails a cascade, not a trickle. The quality of growth may be important, but growth itself is the surest way to reduce human deprivation around the world.
    Others agree that growth's the key to reducing poverty:
    [A] recent World Bank study that looked at growth in 65 developing countries during the 1980s and 1990s. The share of people in poverty, defined as those living on less than a dollar per day, almost always declined in countries that experienced growth and increased in countries that experienced economic contractions. The faster the growth, the study found, the faster the poverty reduction, and vice versa. For example, an economic expansion in per capita income of 8.2 percent translated into a 6.1 reduction in the poverty rate. A contraction of 1.9 percent in output led to an increase of 1.5 percent in the poverty rate.
    Data from the Bureau of Labor Statictics supports the notion that growth reduces poverty regardless of whether the rich benefit as well:

    Comparison of GDP (click to enlarge)

    Obviously, growth is good--even for the poor.

    Now it's true that President Bush has departed from small government conservatism. He's wrong to do so--the recent Highway Bill, for example, should have been vetoed, not touted. But though Bush is off the reservation, there's widespread acknowledgment that "Reaganomics" -- also implemented by President Clinton beginning in 1995 -- strikes the appropriate balance, spurs growth and benefits all.

  • Campaign Finance Reform: This one's easy. We've had a belly full of reforms, which suppressed speech and were ineffective. By silencing individual opinion, banning "issue ads" is simply outrageous (as boomr recognizes). And Congress can't keep up with loopholes, as last year's "527" fiasco proved.

    So repeal it all. Replace the morass with a simple concept: disclosure. Money doesn't necessarily corrupt--it mostly amplifies a speaker's, or an idea's, audience. And we can't stop the money anyway. But we can, and should, know about it. If Richard Gephardt, for example, is a wholly-owned subsidiary of the AFL-CIO, the voters can assess his candidacy in that light.

    Make candidates promptly disclose the source and amount of every contribution (the FEC's computer system is nearly there already). Other than funding "coordinated" with a campaign (which fall under the above rule), private pressure/lobby groups must disclose the object and value of their spending (though not their contributors, see NAACP v. Alabama, 357 U.S. 449, 461-63 (1958)). Such disclosure must be posted on the Internet within 48 hours. And, if -- as leftists imagine -- George Bush must paste a sticker on his forehead saying: "Property of "big oil" and Saudi Arabia," so be it. Why should boomr, or "the center," need more, especially (as boomr admits) where more chills speech?
Conclusion: Boomr's request for reason is laudable. But his reasons for rejecting today's parties are thin and contradictory. And his new party wouldn't outlast Nike's newest sneaker. Finally, and most important, many of his proposed new policies contradict experience and/or the Constitution.

It's a good effort. But few will join.


Boomr replies; I respond.

Still More:

Another round of replies and responses.


1 Addressing abortion, boomr suggests that the existance of pro-choice Republicans and pro-life Democrats demonstrates the convergance of the parties. Nonsense. The overwhelming majority in each party agree as to abortion. As an example, all candidates in last year's Democrat presidential primary supported Federalized legalized abortion. And former Pennsylvania Governor Bob Casey learned the costs of disputing settled Democrat doctrine. In any event, should abortion be the litmus test and lynchpin, the correlation would climb to about 2 sigma were the test rephrased as "favor retention of a judicially imposed absolute and unalterable Federalized Constitutional right."

2 I personally have observed this process within my party.

3 Supporting the criminalizing of particular conduct is not the same as supporting the agressive or intrusive enforcement of that crime.


SC&A said...

Excellent post- we are going to discuss this later on.

Very well done.

Boomr said...

Good comments, Carl. Unfortunately, I have to do some actual work while at work. I'll post a detailed response tonight.

Thanks for giving it some thought.

Boomr said...

OK, here goes. Warning: it's long.

1. Party differences. The two parties can have different ideologies, yet have similar goals in not wanting third voices to arise. In fact, my actual quote was, "The two parties agree on absolutely nothing -- nothing, that is, except for the exclusion of other political voices." So, of course I distinguish between the parties. But two different ideologies can have similar effects. Look at the horseshoe model of political extremism: Fascism (extreme conservatism) and Communism (extreme liberalism) are the two points, both equally dictatorial in the way they treat their own people. Effect, same; ideology, different. All I said was the Republicans and Democrats both agree that that they would both be worse off if a viable third party emerged, so they both work against it.

My point is not trivial, and I totally disagree with your casting the Republicans as the party of "debate followed by elections," while the Democrats are nothing but democracy-avoiders. Both parties have excluded minority opinions (or third party opinions) from both primary debates and election debates. I didn't see Nader at any of the debates in 2000 or 2004 -- he may be on the extreme, but he was one party's candidate for President, yet he was excluded from the process BY THE WILL OF BOTH PARTIES.

The abortion issue in your footnote is likewise misleading. "The overwhelming majority in each party agree as to abortion." That's not the point. Of course, in any party (including my proposed centrist party) the majority of party members will be in basic agreement over the issues. The point was that each party fails to allow even slight digression from the party platform. Your footnote actually proves my point, as it shows how one party will shun its own member for mere disagreement over one issue. Tell me a pro-choice Republican wouldn't be instantly tagged with the "Republican in name only" slogan. This party loyalty despite the candidate's own thoughts on the issue actually hampers effectiveness in Congress, as it precludes "bipartisan" agreement among officials on both sides of the aisle who think exactly the same ON ONE PARTICULAR ISSUE. That's the point of Congress, to take each issue and debate it on its merits. Party loyalty at the expense of an official's own conscience corrupts this process.

2. Party loyalty. I never said I would "ban" it. As I said, any party would have to be comprised of basically like-minded people. But you put two people -- ANY two people -- in a room together, and eventually you'll find something about which they disagree. My stance is that people who are 90% like-minded should be given the freedom to disagree on the final 10% without threats of reprisal. This isn't "banning" loyalty, it's allowing debate -- and isn't that what "Republicans and conservatives" want according to you?

By the way, it's "central tenets," not "tenants." I'm hoping that was one of the typos you were trying to correct with the update.

3. Religion. Too many of your referenced "religious" laws are simply not religious in origin; they originated in the very foundations of society before religion was even established. "Thou shalt not kill" existed long before God carved it into stone for Moses. "The Golden Rule" is simply a way of saying "you don't hurt me, I won't hurt you," which is the basic social compact OF EVERY SOCIETY, EVER. Just because religion embraced it, doesn't make it a religious doctrine.

You state, "My idea is that adultery is immoral and hurts others...." Fine, don't do it. But, other than making people feel sad, show me how it hurts people. Married persons are legally allowed to make each other feel sad with words, with actions, with simply leaving skid-marked underwear on the floor, but none of these actions are criminal. So what is the purpose of the law? If it's only because "the Bible tells me so," then yes, I would oppose it. [Before you get off on a rant here, I'm not supporting adultery. I'm just saying that not all offensive or immoral conduct should be criminal.]

Re: your footnote. You state, "Supporting the criminalizing of particular conduct is not the same as supporting the agressive [sic] or intrusive enforcement of that crime." So you're advocating passing a law that won't be enforced (making it irrelevant), or will be selectively enforced (making it unconstitutional). What's the point of criminalizing conduct without enforcing the criminal statute?

By the way, I should note that your link (to a Clarence Thomas dissent) states, "Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources." Even your much-vaunted judicial hero doesn't agree with criminalizing private consensual sexual conduct -- which includes adultery.

4. Economics. Reaganomics is not the be-all, end-all of money theory, and your theory that the better rich people do, the better poor people do isn't necessarily proven by facts. The divide between executive salaries and average assembly-line worker salaries has widened TREMENDOUSLY over the last couple of decades, one growing at a much faster rate than the other. (see I've been trying to find the article and can't quite yet, but I read something a few months ago that showed that 50 or 60 years ago, the richest corporate owner or president was making something like 100-150 times the salary of the average worker, while today it's over 1000 times.

Now, again, I'm not calling for "workers of the world" to "unite," but the growing corporate scandals and widening salary gaps show that the worker isn't progressing at the same rate as the executive. Being a "professional" myself, I'm all for paying meritorious and educated executives well, but at present the fulcrum on the balance between worker and executive is heavily skewed towards the executive, and I'd like to see the two sides working together more to improve everyone's lot. If President Bush, as the leader of the new school of conservative politicians, can branch off from the Reaganomics plan, then so can those who follow him.

5. Campaign Finance. Under the present system, I'm in total agreement with you, Carl, that disclosure is key. I am a little skeptical of the notion that money doesn't corrupt, though. Like I said, I'm not totally sure how to remedy the system at present without overchilling speech, and I don't want to see real political speech dampened at all. But there is a big divide between those with a voice but no money, and those with both voice and money. The ones with the money get more voice, which again is not the concept of "free speech" envisioned by the Framers. There's got to be a way to allow those with a voice and political support from the community, but little money, to get a foot in the door in elections. The only way I can see to do that is to take money out of the process, at least in terms of television and radio media election ads. I'm all for entertaining other ideas, though, so please keep 'em coming.

Conclusion: I appreciate your point-by-point addressing of the issues I raised, because the more we talk about it (that great debate you mentioned), the better each of our positions will become. Our opinions differ on the amount of people who may be willing to join, though -- I think there is a large number of people in the country dissatisfied with both parties and looking for a better system of compromise in our national politics, but don't have anywhere to turn at present. The ultimate goal is to give them that option. If it fails, it fails, but that's no reason not to try it. And if you truly desire "debate followed by elections" as a means of confirming that your admittedly partisan views are the "will of the people," then you should have no problem with admitting a third voice to the debate. If the country is really as behind you as you claim, then a third voice won't matter to you, and will be further validation of your views. So why fight it?

@nooil4pacifists said...

Good response, boomr; a few brief reactions:

1 & 2) Party differences and loyalty: Although I agree that both parties oppose creating another, that has little causal connection with the absence of any viable third party. The real reasons are "first past the post" elections (everywhere except Louisiana) and the Electoral College system in Presidential elections. Both approaches implement "winner take all," thus discouraging more than two parties (and incidentally discouraging coalition government). The Electoral College was designed by the founders to discourage "regionalism" (meaning multiple, but only regional, parties). The parties aren't permanent -- Republicans arose out of the ashes of the Whigs, Whigs from the Federalists -- but, for better or worse, America's voting system sacrifices the old in the face of the new.

One can debate voting systems endlessly, but Ken Arrow won a Nobel demonstrating that every voting system is flawed. But it is voting systems, not the present parties, that block your vision.

I don't think you've rebutted my claim that Republican party policy is more amenable to debate and voting than Democrats. I'm not sure either group "suppresses" minority opinion in any non-trivial way (see, e.g., Ted Kennedy and John McCain in the 1980 and 2000 Presidential primaries). Debates are a contract between candidates and the media, not state action. Party "whips" do herd cats, once the majority view is clear. And, of course, majority views change (e.g., the Dems' reversal on free trade). Partisans -- like me -- know they won't agree universally--but make a constantly re-assessed calculation of what best advances their interests. This is neither corrupt nor a compelled check on a Congressman's conscience. See, e.g., Senators Jim Jeffords and Phil Gramm. I don't know whether that's equivalent to your 90%/10% ratio, but submit that such assessments are part of each party member's conscience, and cannot be externally imposed.

Even assuming the parties are equally guilty in "suppressing" third parties or minority opinion, do you dispute that Republicans, on the whole, favor letting the electorate settle many more issues than do the Democrats? What's your evidence? You seem to violate your own proposal, below.

Sorry 'bout the typo; thanks.

3) Religion: The flaw in your argument is defining "religion" and "morality" as you see it. You're picking and choosing to fit your doctrine, not reflecting another's religion or morals. I have no idea whether prohibitions on theft, lies, murder, etc., predated Moses. But, I submit, neither do you: plenty of societies today permit at least some murders (honor killings) or institutionalize theft (the "jizyah" tax on "people of the book"). How do you distinguish between morals that "originated in the very foundations of society" from others? Is there a time in human history "before religion was even established?" (and, if so, why is that the sole starting point?).

You attempt to deploy "hurt" as a deus ex machina neutral principle. But it's not neutral--unless you believe the founders intended America be a Judeo-Christian country. Absent that, people will differ on what hurts, and what they would outlaw. Why is your view superior? Surely you're not basing your system on the notion that adultery doesn't hurt--it did and does. (Are criminal sanctions against suicide unlawful?) And I know what Thomas said--but why would you forbid enacting societal standards but tempering enforcement? I don't think it "irrelevant." Why is that middle ground unavailable to a majority? Where does it say that in the Constitution.

Again, assuming (what I presume is your view) America's laws need not necessarily reflect Judeo-Christian ethics, there is no neutral principle of appropriate beliefs or acceptable morality. Instead, our representative democracy chooses its laws via elections (November votes, and Congressional yeas/nays). The sole limitation on the will of the majority are those minority right protected by the Constitution. And, outside of particular protections in the text (e.g., the First Amendment's application to obscenity), the Constitution does not prohibit legislation founded on the majority's morals. Nor does it forbid choices some think stupid--or irrelevant.

Further, you still provide no practical way to distinguish between the impermissibly "religious" and the acceptable "foundations of society." If a state legislature doesn't say "because the bible tells me so," but nonetheless bases support for a law on their Judeo-Christian worldview, is criminalizing theft Constitutional or not? How do you propose interrogating the subjective opinions of Congress? Or the electorate? How can you imagine either is Constitutional?

You give the game away by supposing some universal, but non-religious, code of morality. You transgress logic again by a personal, and constrained, definition of hurt. In the guise of religious neutrality, your approach merely locks-in your brand of liberal secularism. That's fine--if you get the votes. Otherwise, you're only acting as you claim you abhor: preventing debates and votes by subordinating the "appropriate" to your dictates.

4) Economics: Your approach appears to be grounded on the notion that there is some "right" balance of salaries. I know of no such thing. In any event, in addition to individual merit, salary is a product of demand. To the extent they choke profits, salaries will drop; if revenues rise, salaries may too. So long as executive salaries are fully disclosed (to shareholders, bond holders, the Board, i.e., the public) salaries will vary over time, with a trend toward the mean.

And I see no evidence today's workers are more impoverished. Indeed, I've shown the opposite.

5) Campaign finance: Where's evidence of the excluded voiceless? Between Nader and the "527s," money made possible more opinion than ever. And there's a Washington lobby for every "special interest"--or two or three. What's the problem with that? Given the widely acknowledged division among the electorate, do you really think campaign finance corrupted anyone? (Bribing voters is, and should remain, unlawful.)

Even were forbidding money consistent with the First Amendment -- and it ain't -- your approach would leave the media as the sole "uncoordinated" speaker. How could that be desirable?

Conclusion: Obviously, I don't object to your plan to create a new party. I do oppose most of your economic and campaign law tinkering. And I'm convinced your anti-religious test and some of proposed election reform are unconstitutional. But, outside those areas, I'm not advocating suppressing your voice. Instead, let the best idea win: not by personal or judicial fiat, but by simple numerical majority. That's how we settle disputes in America.

@nooil4pacifists said...

Pictorial evidence of adultery's "hurt."

Boomr said...

You're right, I think we can debate voting systems for eons. So, I'll confine my reply to the topic that seems to pop up the most in our exchanges: religion and government.

"I have no idea whether prohibitions on theft, lies, murder, etc., predated Moses. But, I submit, neither do you:"

Assuming Moses was an actual historical figure, when did he live? According to some, the stories of Exodus happened circa 1314-1313 B.C. ( Hammurabi reigned between 1795 and 1750 B.C. ( Here's some of his Code:

"If any one bring an accusation of any crime before the elders, and does not prove what he has charged, he shall, if it be a capital offense charged, be put to death."

"If any one steal the property of a temple or of the court, he shall be put to death, and also the one who receives the stolen thing from him shall be put to death."

"If any one steal cattle or sheep, or an ass, or a pig or a goat, if it belong to a god or to the court, the thief shall pay thirtyfold; if they belonged to a freed man of the king he shall pay tenfold; if the thief has nothing with which to pay he shall be put to death."

"If any one lose an article, and find it in the possession of another: if the person in whose possession the thing is found say "A merchant sold it to me, I paid for it before witnesses," and if the owner of the thing say, "I will bring witnesses who know my property," then shall the purchaser bring the merchant who sold it to him, and the witnesses before whom he bought it, and the owner shall bring witnesses who can identify his property. The judge shall examine their testimony—both of the witnesses before whom the price was paid, and of the witnesses who identify the lost article on oath. The merchant is then proved to be a thief and shall be put to death. The owner of the lost article receives his property, and he who bought it receives the money he paid from the estate of the merchant."

"If any one break a hole into a house (break in to steal), he shall be put to death before that hole and be buried."

"If any one is committing a robbery and is caught, then he shall be put to death."


There are also too many prohibitions on murder to mention in quotes. So yes, the prohibitions against theft, lies, and murder did appear long before Moses.

"... plenty of societies today permit at least some murders (honor killings)...."

Or state-sanctioned execution, or killing in self-defense or defense of others, or in war, etc. Sound familiar? Even our society does not follow "Thou shalt not kill" explicitly.

"How do you distinguish between morals that "originated in the very foundations of society" from others?"

They're not morals; they're measures to protect society. Stealing, without context, is not immoral. If someone's starving, is it immoral for him to pick an apple from a neighbor's tree without permission? No. Stealing for mere personal gain, well, that's something that puts all of us in society at risk, and thus is a subject of the initial social compact. As soon as the concept of personal property arose (as opposed to collective ownership), then the prohibition against stealing arose. This has very little to do with morality and much more to do with the safety of the society as a whole. It's also a concept that doesn't require faith in order to have its application to society, just as the general prohibition on murder doesn't require a belief in the divine in order to make sense. But then look at concepts like adultery, or homosexuality, or blasphemy, or working on a particular day of the week -- all of those are based in the belief in some sort of divine regulations, none of which have a particular purpose furthering the safety of the society.

"why would you forbid enacting societal standards but tempering enforcement? I don't think it "irrelevant." Why is that middle ground unavailable to a majority? Where does it say that in the Constitution."

Because "enacting societal standards but tempering enforcement" necessarily implies "enforcement" on a selective basis, which would implicate any number of Constitutional provisions: Article IV (full faith and credit, privileges and immunities), the Fourth Amendment (unreasonable search and seizure), the Fifth Amendment (due process), the Sixth Amendment (impartial jury), the Eighth Amendment (cruel and unusual punishment), the Fourteenth Amendment (due process, privileges and immunities, equal protection). Either something is criminal for all or criminal for none -- it makes no sense to criminalize something only to allow its practice for some but not for others. The criminal law should not be used as a means of "suggestion" of morality.

"... there is no neutral principle of appropriate beliefs or acceptable morality."

Exactly, which is why I've said a number of times that government should not be in the morality business. Its sole job should be ensuring the safety of its citizens and the land within its borders. Leave morality to the individual, his family, his church, his conscience. Legislation of morality does nothing except increasing the number of people deemed criminals.

"... the Constitution does not prohibit legislation founded on the majority's morals."

Show me where it's allowed. When we're talking about government action (as in criminalizing something or legislating based upon morality, and as opposed to private action of a non-governmental citizen), the Constitution defines everything that a government is allowed to do, and anything not listed is prohibited ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." -- Tenth Amendment). And, I'll say it again, legislation based upon one religion necessarily implies legislation to the detriment of another religion, thereby infringing upon the free exercise and establishment clauses.

"Further, you still provide no practical way to distinguish between the impermissibly 'religious' and the acceptable 'foundations of society.'"

Luckily, I have no need to, as the Supreme Court has already defined this process, requiring a legitimate state interest and a law narrowly tailored to that interest. I'm sure you'd say that defining morality is a legitimate state interest -- if so, I'd like you to point me to the Constitutional provision that permits government to be in the morality business.

"You give the game away by supposing some universal, but non-religious, code of morality."

First, I would say that it is possible to be moral without being religious -- not that I'm saying a "universal ... code of morality" exists. But second, that's again beside the point, as the government should by no means have the power to define morality for a population. Safety of the people and the land within its borders, nothing more, nothing less. A government basing its decisions on the safety of the nation need not worry about a "universal morality" -- or any other type of morality.

"Otherwise, you're only acting as you claim you abhor: preventing debates and votes by subordinating the "appropriate" to your dictates."

How is legislation based upon your narrow religious view doing anything different? If we just bow before the unproven (and baseless) statement that this nation was founded upon Judeo-Christian ethics, then how does that possibly allow debate upon issues based on any other "code of morality?" If we narrowly define the nation as Judeo-Christian, then we close off the debate stemming from such other moralities. That's a debate that should occur within the individual, or within his family. It's not a debate that should occur within Congress.

@nooil4pacifists said...


I think we're talking past each other. In order of importance:

1) Constitutionality of morals legislation: You say "Show me where it's allowed," which reflects a gross misunderstanding of the Constitution. Bluntly, you've erroneously reversed your burden of proof.

The Constitution grants limited Federal powers, reserving all other powers to the states and the people. Yes, the Constitution forbids some narrow sorts of state action (infringing on now-incorporated Bill of Rights provisions, departing from those Amendments directed toward state action (e.g., the 15th Amendment) and (under the supremacy clause) trumping statutory preemption that itself derives from a lawful Federal power.

In arguing "anything not listed is prohibited," you've fundamentally misread the Constitution (especially the 10th Amendment) and its entire intent. (Indeed, you seem to have lapsed into East German-itis.) What you say is true only for the Federal government. In contrast, each state is a separate sovereign; the scope of state power does not derive from, and need not be tied to particular language in, the U.S. Constitution. Apart from the previous sort of textual limitations, states may do anything. The fact that neither morality nor the lawfulness of morals-based legislation is not mentioned in the Constitution confirms states have the right, power and authority to enact morals-based legislation. Whether they choose to do so is a question for each state' citizens and their elected representatives.

2) Religion: You insist on picking and choosing what you consider religious, and your definitions are wrong, inconsistent, and not widely shared. For example, you avoid the religious basis of the 10 Commandments by pointing to an earlier, and somewhat similar, compilation. I do appreciate your reference to the Code of Hammurabi, which indeed predated Mosaic law. But that doesn't make the Code any less religious than the 10 Commandments, as demonstrated by just the first paragraph of the preamble to Hammurabi's code:

"When Anu the Sublime, King of the Anunaki, and Bel, the lord of Heaven and earth, who decreed the fate of the land, assigned to Marduk, the over-ruling son of Ea, God of righteousness, dominion over earthly man, and made him great among the Igigi, they called Babylon by his illustrious name, made it great on earth, and founded an everlasting kingdom in it, whose foundations are laid so solidly as those of heaven and earth; then Anu and Bel called by name me, Hammurabi, the exalted prince, who feared God, to bring about the rule of righteousness in the land, to destroy the wicked and the evil-doers; so that the strong should not harm the weak; so that I should rule over the black-headed people like Shamash, and enlighten the land, to further the well-being of mankind."

Ah that clever, secular, Hammurabi!

To the extent you claim the code is not only non religious but also a just and an appropriate foundation for modern law, I note that Hammurabi code also provides for trial by compurgation (clause 2), limits on the alienability of property (clauses 36-38), slavery (clauses 7, 15 and passim) and, unsurprisingly, criminalizes adultery (clause 129-30):

"129. If a man's wife be surprised (in flagrante delicto) with another man, both shall be tied and thrown into the water, but the husband may pardon his wife and the king his slaves.

130. If a man violate the wife (betrothed or child-wife) of another man, who has never known a man, and still lives in her father's house, and sleep with her and be surprised, this man shall be put to death, but the wife is blameless."

Simply put boomr, Hammurabi doesn't help your case. Either a) Hammurabi also is both religious and based on morals (therefore disproving your notion that morals and religion are easily distinguished); b) there are no universally agreed upon laws/principles/codes that "originated in the very foundations of society before religion was even established" and were part of "the basic social compact OF EVERY SOCIETY, EVER;" or c) prohibitions on adultery (and possibly other enumerated practices) are included in "the basic social compact OF EVERY SOCIETY, EVER."

Criminalizing blasphemy is easy--it would violate the First Amendment. But your proposed test flounders on anything more complicated--public school Christmas carols, for example. And you've made my point regarding legitimate state interest/rational basis: again, assuming no overt religious references in law or legislative history, statutes may be motivated by a religious worldview--and still be legitimate, rational and Constitutional.

3) Morals: Your reliance on utilitarianism as the sole acceptable touchstone for law and your selective definition of morality lead you to numerous errors. First you claim law can't address "sadness," but may "protect society" only when necessary to prevent "hurt." This is neither mandated by the Constitution nor practical. How much "hurt" qualifies a practice as criminal? Sadness sure hurts. I say adultery hurts; its victims are both the cuckold and the society. You disagree, fine. But what gives you the right to choose the categories and their definition?

(And, by the way, stealing is always immoral and always criminal; mitigation based on context goes to sentencing, not guilt. The fact that stealing also is economically inefficient merely demonstrates the difficulty one has in identifying morality under purely utilitarian analysis, as J.S. Mill understood. Moreover your analysis of "selective enforcement" -- which is to say, prosecutorial discretion, a concept having no connection to Article IV or Amendments 4, 6 and 8 -- is flatly false. See United States v. Armstrong, 517 U. S. 456, 463-65 (1996); Wayte v. United States, 470 U.S. 598, 607-08 (1985).)

Second, even assuming a utilitarian approach is required, who decides? How do you distinguish the two? To coin a phrase, who died and made you God? Do you actually believe the outcomes of your assessments are infallible? Or universal? I assure you, your categorizations are not. And we've not even addressed polygamy!

Even liberals split on whether prostitution is immoral or should be criminalized. Why are you right? Why should your views prevail over the assessments of others?

Conclusion: The Constitution does not enshrine your on anyone's particular morality or faith. But neither does it mandate your morals or beliefs. Not everyone would sign on to my views; I, for one, oppose yours.

How does the Constitution resolve such disputes? Well, government can't transgress the Bill of Rights, which outlaws establishing any one faith or inhibiting another (subject to various exceptions not relevant here). But beyond that, what's the Constitutional process for choosing sides? Simple: elections.

The Constitution contains no shortcuts--and certainly none that codify your assessment of appropriateness. Though your way may be better, the 10th Amendment gives us the "right to be wrong"--and the concomitant ability to change our minds next November. So if you want to eliminate morals-based laws, "abandon [your] tautological and un-democratic slight-of-hand. Fight like an American: put tolerance to a vote." And this time, persuade more than 48 percent.

Boomr said...

I'm mixing your points into a new order, so please forgive me if I don't follow your numbering system.

First, I noticed that you never addressed my contention that the legislation of one religious view necessarily restricts the free exercise of another religion. How do you reconcile the First Amendment (establishment clause) with ... well, the First Amendment (free exercise clause)?

Your argument is that some conduct prohibited by religious doctrine may cause "hurt" someone to some degree and thus should be criminalized. "[I]ts victims are both the cuckold and the society." I'd argue that what your spouse does to you has very little effect (or "hurt") on society as a whole -- it certainly wouldn't affect me one bit, as I'm neither less likely nor more likely to change any habits I may have with respect to fidelity. I'd agree that adultery hurts the cuckold. But then again, say the adulterous spouse was just a loud-mouthed spouse, and constantly berates his companion verbally. This hurts the companion ("cuckold") just as much as adultery would, yet verbal abuse isn't criminal -- in fact, it's enshrined in the Constitution as a fundamental right, although not in so many words. The same with passive-aggressive conduct (which is not protected by the First Amendment) or various other needles that one spouse can poke into another. Adultery (the "hurt" you want to criminalize) has CIVIL remedies that are much more likely to prevent or punish the conduct equitably (in divisions of the community at divorce, civil damages for infliction of emotional distress, "tortious inference" with the marriage vows, etc.). So, if a remedy is already in place, why send the adulterer to jail? Why does this "hurt" require incarceration? Again, to criminalize such conduct would be to do nothing but define a new class of criminals. It's basically the flip side of the coin from oversaturation of PC-mindedness, wanting to criminalize mere "hurt."

Second, with regards to our old friend Hammurabi, I agree that his laws were part government, part religion, as were most governments around that time (the "priest kings" that were widespread in the ancient city-states). But I never claimed Hammurabi was secular. I used him as an example of the "Ten Commandments"-based governmental concepts that existed long before the "Ten Commandments" were etched into stone tablets for Moses. So, prohibitions on theft, lying, murder, are not originally Judeo-Christian concepts, and thus our government's laws echoing those prohibitions are no more based on Judeo-Christian morality than they are on the morality of Anu the Sublime or any of the Roman pantheon (actually, most of our laws are more based in the Roman system than in the Bible, but to explain that would require a comparative legal history that would be voluminous). Look at other, non-Judeo-Christian or non-Hammurabi-influenced cultures, and you'll see the exact same prohibitions on theft, lying, murder, so the claim that such prohibitions are founded in the Bible is simply incorrect, no matter how much faith in that book you have.

And the mere fact that Hammurabi invoked religion in his code doesn't "disprov[e my] notion that morals and religion are easily distinguished." I stated quite clearly that religion is a subset of morality, and thus religion MUST be morality-based. Morality, on the other hand, does not have to be religious. Reference to Hammurabi likewise does not disprove the idea that certain societal requirements arose before organized religion began. Many of those same societal traits appear in the animal world (working together for the good of the group, not killing each other, etc.) -- or are you asserting that bees and wolves are religious, too? Finally, Hammurabi's rules on adultery don't imply that every society, ever, had such rules, so the presence of such rules in his code means nothing with respect to the larger argument -- although such presence does present an argument that the religious prohibition on adultery didn't begin with the Bible, either.

(As an aside, the fact is that much of the Bible -- both allegory and religious doctrine -- appeared in ancient near eastern societies long before the first Jewish tribe was formed. From flood myths to descent-into-Hell myths to Messianic myths to miraculous works and beyond, the stories in the Bible are largely re-tellings. Likewise, many of the Christian saints were mere renamed heros of pagan mythology [for instance, St. George never existed and bears striking similarities to Perseus], and many of the Christian holidays fall surprisingly close to the dates of pagan holidays [which were coopted by Christianity in order to gain followers from the peasant, pagan flock].)

Third, state morality legislation. I'm a bit confused as to your argument -- are you saying that states can create religiously-based legislation that the federal government is not allowed to create? So, when the Fourteenth Amendment states, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," is this mere surplusage in the Constitutional language? If the Federal government is not allowed to create religiously-based laws, then how do you get around the Fourteenth Amendment's application of that right of citizens (to be protected from such governmental action) to protection from State action? Please explain. States are not allowed to enact laws that are MORE restrictive to an individual's Constitutional rights than the Constitution; they are more than free to expand such rights. This is so despite the "reserved to" language of the Tenth Amendment.

Fourth, you say, "stealing is always immoral and always criminal; mitigation based on context goes to sentencing, not guilt." You're confusing the concepts of morality and law again. Stealing is always ILLEGAL in organized society, and then there's mitigation blah blah blah. Assume no system of positive law -- just a bunch of guys in the jungle. I'm sure you'd agree that morality exists even in such remote consequences. So, without an organized statutory code of theft, burglary, robbery, and degrees thereof, is a starving man who steals another's apple committing an immoral act? I say no; thus, stealing is not always immoral.

Fifth, "selective enforcement" and your rationale. With respect to the Armstrong case (which cites the Wayte case), the decision of the Ninth Circuit being reviewed by the Supreme Court held, "a defendant is not required to demonstrate that the government has failed to prosecute others who are similarly situated" before the defendant can require discovery of documents relating to the government's prosecution of others. Thus, it was essentially a case dealing with discovery, not selective prosecution. The ruling was "we conclude that in the context of Rule 16 'the defendant's defense' means the defendant's response to the Government's case-in-chief" and "If a selective-prosecution claim is a 'defense,' Rule 16(a)(1)(C) gives the defendant the right to examine Government work product in every prosecution except his own."

It did, however, state,

"Of course, a prosecutor's discretion is 'subject to constitutional constraints.' United States v. Batchelder, 442 U.S. 114, 125 (1979). One of these constraints, imposed by the equal protection component of the Due Process Clause of the Fifth Amendment, Bolling v. Sharpe, 347 U.S. 497, 500 (1954), is that the decision whether to prosecute may not be based on 'an unjustifiable standard such as race, religion, or other arbitrary classification,' Oyler v. Boles, 368 U.S. 448, 456 (1962). A defendant may demonstrate that the administration of a criminal law is 'directed so exclusively against a particular class of persons . . . with a mind so unequal and oppressive' that the system of prosecution amounts to 'a practical denial' of equal protection of the law. Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886)."


"...we invalidated an ordinance, also adopted by San Francisco, that prohibited the operation of laundries in wooden buildings. Yick Wo, 118 U.S., at 374. The plaintiff in error successfully demonstrated that the ordinance was applied against Chinese nationals but not against other laundry-shop operators. The authorities had denied the applications of 200 Chinese subjects for permits to operate shops in wooden buildings, but granted the applications of 80 individuals who were not Chinese subjects to operate laundries in wooden buildings 'under similar conditions.' Ibid. We explained in Ah Sin [v. Wittman, 198 U.S. 500 (1905)] why the similarly situated requirement is necessary."


"We think the required threshold - a credible showing of different treatment of similarly situated persons - adequately balances the Government's interest in vigorous prosecution and the defendant's interest in avoiding selective prosecution."

But what you're proposing is a law that is selectively enforced from the outset ("Supporting the criminalizing of particular conduct is not the same as supporting the agressive [sic] or intrusive enforcement of that crime."). This necessarily raises the question of which people will be the subject of enforcement of the crime, and you've offered absolutely no measuring stick by which you would choose such people. I would argue that you would have a difficult time defining such people chosen for selective enforcement without running afoul of the very standards announced in the case you cite.

And yes, such selective enforcement would implicate Article IV, since a criminal conviction in one state under the selective enforcement of your proposed law would have to be given "full faith and credit" in another (for purposes of impeachment of witnesses, sentencing enhancements for later crimes, etc.). The Fourth Amendment would be implicated because selective enforcement of a criminal law would necessarily lead to searches of people and their property based on such alleged violations, but not for others similarly situated, and thus there is the argument that the search would be "unreasonable." The Sixth Amendment would be implicated as well, as a jury might have different views of which people should be convicted under the criminal statute (especially given the morality basis of the legislation, which invokes the individual's PERSONAL opinions, rather than legal guidelines), and thus the jury may not be "impartial." And, of course, if the selective prosecution involves selective decisions on the severity of the punishment for different people based on the same sets of circumstances, then one person is necessarily being punished more than another for the same crime, making such punishment "cruel and unusual" in its application.

Sixth, "... even assuming a utilitarian approach is required, who decides? How do you distinguish the two? To coin a phrase, who died and made you God? Do you actually believe the outcomes of your assessments are infallible?"

Who died and made you God? Or, better yet, who died and made your God my God? Why should I have to live under the self-imposed limitations to which you subject yourself? "Just because a plurality of the voters say so" is not a valid option here, especially since so much of the Constitution and the laws of our country and its states is intended to protect the minority voices in the community.

Seventh, "Well, government can't transgress the Bill of Rights, which outlaws establishing any one faith...."

No, you've misstated the Constitutional restrictions. The document doesn't just prohibit the establishment of "any one faith," but of any law "respecting" ANY FAITH, whether that's one faith or many. I have the Constitutional right to have no faith in religion, which means I have the Constitutional right not to live under a government directed by religious doctrine that has no purpose other than the safety of a person's soul.

Conclusion, "abandon [your] tautological and un-democratic slight-of-hand. Fight like an American: put tolerance to a vote."

It's "sleight of hand," first off -- otherwise, we'd just be talking about small appendages. And, more importantly, why must I put my Constitutional rights to a vote every time you and others in your politico-religious mindset want to command a morality for the entire nation? Unless we're talking about a new Amendment that I've missed, the Constitution pretty much ensures that I never have to put such rights in jeopardy to the whim of 50.1% of the 40% of the electorate who decides to show up. Let's not elevate the recent American "democracy" to levels of society-wide decisions on issues; it's pretty clear from voter turnout in the past 20 years or so that less than 20% of the voting population (which, by the way, excludes a healthy portion of non-voting Americans) controls what goes on around here. It's just this sort of voter apathy that makes my Constitutional rights impregnable by the assaults of the election process.

Boomr said...

In addition, I should note that "fight[ing] like an American [and] put[ting] tolerance to a vote" has a pretty disastrous history if left unchecked by Constitutional interpretation made by the courts. Such votes that you hold in high regard include slavery, segregation, laws against "miscegenation of blood," laws deeming wives to be husbands' chattel, and the election of Jimmy Carter, to name only a few examples of how voters can make horrible -- and even immoral -- choices.

@nooil4pacifists said...


1) Conflict between Free Exercise and Establishment: Yes there is one. I admit it. So does Justice Ginsburg. And, remember, we agree on the unconstitutionality of legislating religion. Where we part is your insistence that we can (or must) identify and prohibit religious views shaping laws, either practically or Constitutionally.

2) Legislative justification: We need not, and I will not, debate what hurt is sufficient (resulting from, say, theft or adultery) to justify legislation. My point is that reasonable people will disagree on the topic, as you disagree with me. Never mind trying to convince me any particular act causes insufficient hurt, the real point is why should your view exclude mine? Where is that authorized in the Constitution?

I have no idea what you're saying about Hammurabi. You cited that code to argue that prohibitions on, say, theft predated Moses. We agree they did. But how does that help you since the prohibition you mention also was religious?

3) Morals as justification: You said your new party would favor "absolutely preclud[ing]" legislating based on "one group of citizens' idea of morality." But, mandating your definitions, you're doing exactly that! Again, that's why we have elections. Which you seem to recognize when mentioning President Goober.

4) Morals as Constitutional: I said the Constitution doesn't bar legislation based on morals. Your reply addresses "religiously-based legislation," which I did not say. This shift reflects your repeated slight-of-hand insisting that you be able to define what's moral.

Your Constitutional interpretation remains wrong: the sovereign states came together to devolve some sovereignty to the central government, retaining all other aspects of sovereignty. Your 14th Amendment is similarly circular: it has been read to incorporate the Bill of Rights protections, which say nothing about morals. This is shown in your assertion that states may not act in a fashion "MORE restrictive to an individual's Constitutional rights"--it's correct as far as it goes, but individual rights are specified in the Constitution, which doesn't address morals. Again you argue moral-based legislation is bared because it infringes civil rights, but only by assuming that the Constitution establishes a prohibition on moral legislation.

Same with your ending. Constitutional rights -- such as laws solely aimed at one's soul -- are not subject to votes. But stop reading "religious" for "morals" and quit assuming the conclusion.

5) Selective enforcement: Yes, the rule is that the selectivity cannot infringe a right guaranteed under the Constitution. Enforcing criminal laws only against blacks is barred by the 14th Amendment. But that rule applies only to rights protected by the 14th Amendment. Circular again. (And, by the way, your Article IV argument makes no sense: criminal laws don't apply outside the sovereign state (with trivial exceptions). And full faith and credit applies to governmental acts, not to inaction.)

MaxedOutMama said...

Good debate.

Boomr, you are arguing in your second-to-last that religiously based morality can't be distinguished from other morality. I agree. Morality is distinct from religion. Both dedicated atheists and religious people often make the same moral or ethical arguments.

Furthermore, ethics is distinct from morality. I may (and I do) believe that adultery is extremely harmful and morally wrong yet I also believe that most laws outlawing adultery are unethical. I do so on the moral principle that no law can be ethical if it causes more harm than it prevents, and that in most cases public punishment of this misdeed creates more harm than it prevents.

But if morality is not necessarily integral with religion, then how can you possibly argue in good faith that a particular ethical rule may not be enacted into law based on the majority of the voting individual's moral judgments (whether associated with a particular religion or not)? Your argument appears to defeat itself.

Also you are misrepresenting the First Amendment when you write:
"The document doesn't just prohibit the establishment of "any one faith," but of any law "respecting" ANY FAITH, whether that's one faith or many."

The text of the 1st Amendment reads:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

How do you derive your interpretation? It does not coincide with the text of the first amendment. "make no law respecting an establishment of religion" is quite a different prohibition than "prohibit any law respecting ANY FAITH". Prohibiting an establishment of religion is clearly meant to ensure that no one religious organization can be given an official position in our society.

Under the circumstances I am coming perilously close to suspecting you of using a deliberately disingenuous wording here. "Respect" as used in the first amendment means "with regard to or having a relationship with". As used in your interesting reframing of the First Amendment, the word could easily be understood as "giving credence to or recognizing".

To put it bluntly, saying that a person can't vote their personal ethical convictions would be a prohibition of free exercise of the individual's conscience. For some individuals, this might be tied up in religion. For others it wouldn't be. All your arguments seek to disadvantage some moral principles that you consider religious and advantage some others you consider to be non-religious, but you get to pick which ones are invalid. This is the most flagrantly anti-democratic idea I have ever encountered.

Even the courts have consistently recognized atheistic/secular moral principles as having the same status under law as religious moral arguments. So for instance, the conscientious objection exemption from the draft can't be restricted to the religious nature of the objection.

You seek to grant or deny rights of exercise of conscience based on whether, in your judgment, a particular conscience has been influenced by religion as opposed by ethics. This is exactly what the Supreme Court has ruled invalid (even though they do it themselves). That cannot be the criteria under the American Constitution.

Please rebut my criticisms or restate your argument so as to invalidate them.

@nooil4pacifists said...


Am I mistaken, or are you a libertarian?

Boomr said...

(Deep breath)

Here goes. Using Carl's numbering now.

1. I guess maybe we need to define our terms with respect to "religious views." If your "religious view" is that theft is wrong, then no, such a law is not prohibited, because no matter what YOUR motivation for putting forth such a law, it still fits the legitimate state interest test -- that is, it has OTHER secular bases beyond just "religious views" to justify it. So, theft, perjury, murder, even incest have non-religious reasons for being criminalized.

The counter-example I usually use is any law restricting or regulating homosexuality or what homosexuals can do. No one has yet provided me with a reason why the government should restrict rights or opportunities for gay people apart from the biblical prohibition. I'll say it again: What two gay people do in their own bedrooms will have absolutely no effect on what I do in my bedroom or anywhere else in my (or anyone else's) life. That is, there is no "legitimate state interest" in restricting the rights or opportunities of homosexuals -- it is simply a matter of personal morality whether one person chooses to be offended by the ambiguously-defined "gay lifestyle." If you can point to a legitimate state interest for restricting or regulating homosexuality, please let me know.

2. With respect to legislation of hurt, I'm not trying to "exclude" your view on the subject, but there are myriad ways to "hurt" someone that are thoroughly protected by the Constitution. My point was, other than promoting a certain religious prohibition, what purpose is served by the government intruding on the nation's sex lives? Well-settled doctrine has already removed the government from the bedrooms of both married and non-married heterosexuals, and to a more limited extent, homosexuals. Other than spreading Judeo-Christian lifestyles, what legitimate state interest is there in criminalizing adultery? Please explain.

On Hammurabi, again, the mention of his code was in response to the assertion that has been made countless times in recent years that our laws are founded on Judeo-Christian tenets (a SPECIFIC religious doctrine), with particular emphasis on the Ten Commandments (just see all of the Justice Sunday et sequel speeches). Hammurabi's code (predating the Ten Commandments) contains the same prohibitions, and whether it was a partially religious code or not, it is proof that such prohibitions are not founded in Judeo-Christian precepts, and thus the same prohibitions that appear in our laws may not reasonably be traced to the Judeo-Christian ethos as the wellspring from which all law in this nation flows. And, again, Hammurabi was one example. Find me a society without those basic precepts (either religious or not), and maybe I'll start amending my statements. Maybe.

3. On morals as justification, perhaps we also need to define our terms there. I'm trying to distinguish between legislation directed solely towards the safety of the population, and legislation directed towards the thought processes of the population. Morality, in my opinion, will never be something upon which all people in this country agree -- that is, there is no absolute system of right and wrong upon which our population relies in order to coexist in one nation. Morality and religion are both very personal concepts -- they're essentially modes of thought, some considered, some just accepted, but nonetheless they're fairly individualized. This is a natural by-product of a government that allows freedom of speech and religion. Take adultery, for example: You say it's immoral. But what if BOTH the husband and the wife disagree with you, and don't share the same view on adultery's immorality? Is it still immoral if it isn't "hurting" the "cuckold?"

So when I say I want to preclude legislation based upon personal morality, I mean I want legislation geared solely towards the protection of the citizens and the land within our borders. And yes, this standard will certainly spark differing opinions and will promote a wealth of debate. I simply don't want the government telling me how I should think, which is the natural by-product of legislation based upon morality.

4. You're right, I focused on "religiously-based legislation," but even if we're considering "morality-based legislation," such legislation still requires the legitimate state interest test noted above. Telling someone how to think, in my opinion, is not a legitimate state interest -- otherwise, the Klan, the Aryan Nation, various fundamenalist Muslim organizations, Cindy Sheehan, and other groups on the extreme fringe would not be able to give you fodder for your blogging, because their thought would be prohibited by the alleged "national morality."

I truly do think that morality-based legislation would end up compromising a number of rights granted by the Bill of Rights and applied to the states via the Fourteenth Amendment, not the least of which are the establishment clause (if the morality is religious), the freedom of speech (which touches on the freedom of thought), and the freedom of assembly (ditto). Criminalization of violations of morality (an inherently subjective concept) -- without some other governmental purpose for the law based upon some objective standard -- is simply a first step towards the gradual restriction of many rights.

And, by the way, if we legislate morality based upon the prevailing whims of the voting populace, there will be no true lasting standards applicable to our laws. While every Constitutional right has gone through a period of evolution, that evolution has at virtually every single step resulted in the increased application of rights to society. Allowing legislation to be passed every election cycle would result in a mish-mosh of rights being restricted in one era and expanded in another, with no bright-line rules created. It would, in essence, give us voting-based entropy, large swings in the supposed "national" morality in short amounts of time.

Again, it's "sleight of hand," not "slight of hand."

5. Give me an example of a system whereby selective enforcement is possible based upon your idea, and then I'll argue my Constitutional points. A hypothet will do, but until such a scheme is posited, we're both talking in circles, because you'll never agree with me just in theory, and I'll never agree with you. So put forth an idea, and let's see where we go from there.

And, of course, we can't leave out MaxedOutMama:

With regards to the morality/religion issue, see above. Perhaps I'm not clear -- I'm tired, so I may not be making much sense. At some point, I'll try to be more erudite.

On the First Amendment and "establishment," I hate to be blunt, but you're wrong. See this quote :

"... this Court has rejected unequivocally the contention that the Establishment Clause forbids only governmental preference of one religion over another. Almost 20 years ago in Everson, supra, 330 U.S., at 15, 67 S.Ct., at 511, 91 L.Ed. 711, the Court said that '(n)either 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.' And Mr. Justice Jackson, dissenting, agreed:

'There is no answer to the proposition * * * that the effect of the religious freedom Amendment to our Constitution was to take every form of propagation of religion out of the realm of things which could directly or indirectly be made public business and thereby be supported in whole or in part at taxpayers' expense. * * * This freedom was first in the Bill of Rights because it was first in the forefathers' minds; it was set forth in absolute terms, and its strength is its rigidity.' Id., 330 U.S., at 26, 67 S.Ct., at 516, 91 L.Ed. 711.

Further Mr. Justice Rutledge, joined by Justices Frankfurter, Jackson and Burton, declared:

'The (First) Amendment's purpose was not to strike merely at the official establishment of a single sect, creed or religion, outlawing only a formal relation such as had prevailed in England and some of the colonies. Necessarily it was to uproot all such relationships. But the object was broader than separating church and state in this narrow sense. It was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.' Id., 330 U.S., at 31—32, 67 S.Ct., at 519, 91 L.Ed. 711.

The same conclusion has been firmly maintained ever since that time, see Illinois ex rel. McCollum, supra, 333 U.S., at pp. 210—211, 68 S.Ct., at pp. 464—465, 92 L.Ed. 648; McGowan v. Maryland, supra, 366 U.S., at 442—443, 81 S.Ct., at 1113—1114, 6 L.Ed.2d 393; Torcaso v. Watkins, supra, 367 U.S., at 492—493, 495, 81 S.Ct., at 1682—1683, 1684, 6 L.Ed.2d 982, and we reaffirm it now."

School District of Abington Township, Pennsylvania v. Schempp, 374 U.S. 203 (1963).

See also:

"The addition of "or voluntary prayer" indicates that the State intended to characterize prayer as a favored practice. Such an endorsement is not consistent with the established principle that the government must pursue a course of complete neutrality toward religion."

Wallace v. Jaffree, 472 U.S. 38 (1985).


"In the course of adjudicating specific cases, this Court has come to understand the Establishment Clause to mean that government may not promote or affiliate itself with any religious doctrine or organization, may not discriminate among persons on the basis of their religious beliefs and practices, may not delegate a governmental power to a religious institution, and may not involve itself too deeply in such an institution's affairs. Although "the myriad, subtle ways in which Establishment Clause values can be eroded," Lynch v. Donnelly, 465 U.S., at 694, 104 S.Ct., at 1370 (O'CONNOR, J., concurring), are not susceptible to a single verbal formulation, this Court has attempted to encapsulate the essential precepts of the Establishment Clause. Thus, in Everson v. Board of Education of Ewing, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), the Court gave this often-repeated summary:

"The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa." Id., at 15-16, 67 S.Ct., at 511-512.

In Lemon v. Kurtzman, supra, the Court sought to refine these principles by focusing on three "tests" for determining whether a government practice violates the Establishment Clause. Under the Lemon analysis, a statute or practice which touches upon religion, if it is to be permissible under the Establishment Clause, must have a secular purpose; it must neither advance nor inhibit religion in its principal or primary effect; and it must not foster an excessive entanglement with religion. 403 U.S., at 612-613, 91 S.Ct., at 2111. This trilogy of tests has been applied regularly in the Court's later Establishment Clause cases.

Our subsequent decisions further have refined the definition of governmental action that unconstitutionally advances religion. In recent years, we have paid particularly close attention to whether the challenged governmental practice either has the purpose or effect of "endorsing" religion, a concern that has long had a place in our Establishment Clause jurisprudence. Engel v. Vitale, 370 U.S. 421, 436, 82 S.Ct. 1261, 1270, 8 L.Ed.2d 601 (1962). Thus, in Wallace v. Jaffree, 472 U.S., at 60, 105 S.Ct., at 2491, the Court held unconstitutional Alabama's moment-of-silence statute because it was "enacted . . . for the sole purpose of expressing the State's endorsement of prayer activities." The Court similarly invalidated Louisiana's "Creationism Act" because it "endorses religion" in its purpose. Edwards v. Aguillard, 482 U.S. 578, 593, 107 S.Ct. 2573, 2582, 96 L.Ed.2d 510 (1987). And the educational program in School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 389-392, 105 S.Ct. 3216, 3225-3227, 87 L.Ed.2d 267 (1985), was held to violate the Establishment Clause because of its "endorsement" effect. Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 17, 109 S.Ct. 890, 901, 103 L.Ed.2d 1 (1989) (plurality opinion) (tax exemption limited to religious periodicals "effectively endorses religious belief").

Of course, the word "endorsement" is not self-defining. Rather, it derives its meaning from other words that this Court has found useful over the years in interpreting the Establishment Clause. Thus, it has been noted that the prohibition against governmental endorsement of religion "preclude[s] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred." Wallace v. Jaffree, 472 U.S., at 70, 105 S.Ct., at 2497 (O'CONNOR, J., concurring in judgment) (emphasis added). Accord, Texas Monthly, Inc. v. Bullock, 489 U.S., at 27, 28, 109 S.Ct., at 906, 907 (separate opinion concurring in judgment) (reaffirming that "government may not favor religious belief over disbelief" or adopt a "preference for the dissemination of religious ideas"); Edwards v. Aguillard, 482 U.S., at 593, 107 S.Ct., at 2582 ("preference" for particular religious beliefs constitutes an endorsement of religion); Abington School District v. Schempp, 374 U.S. 203, 305, 83 S.Ct. 1560, 1615, 10 L.Ed.2d 844 (1963) (Goldberg, J., concurring) ("The fullest realization of true religious liberty requires that government . . . effect no favoritism among sects or between religion and nonreligion"). Moreover, the term "endorsement" is closely linked to the term "promotion," Lynch v. Donnelly, 465 U.S., at 691, 104 S.Ct., at 1368 (O'CONNOR, J., concurring), and this Court long since has held that government "may not . . . promote one religion or religious theory against another or even against the militant opposite," Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968). See also Wallace v. Jaffree, 472 U.S., at 59-60, 105 S.Ct., at 2491 (using the concepts of endorsement, promotion, and favoritism interchangeably).

Whether the key word is "endorsement," "favoritism," or "promotion," the essential principle remains the same. The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from "making adherence to a religion relevant in any way to a person's standing in the political community." Lynch v. Donnelly, 465 U.S., at 687, 104 S.Ct., at 1366 (O'CONNOR, J., concurring)."

County of Allegheny v. ACLU, 492 U.S. 573 (1989).

So, legislation can't support one religion, nor can it support religion in general. By the way, if we're going the eytmological route, "establishment" could mean one act of "establishment" of multiple religions. One piece of legislation (i.e., one "establishment") could "respect" multiple religions at once. This, too, is prohibited by the First Amendment. Thus, in your "conscientious objector" example, the government could not limit such status to religious objections, because that would favor religion in general over non-religion. That's not deeming secular thought to be equal to religious thought; it's merely prohibiting government from putting religious reasons on a pedestal over secular reasons.

And saying that legislation can't be religiously-based is NOT the same as saying people can't vote according to their faiths. If we're talking about the average man-at-the-poll, go for it -- if it makes you feel better to vote according to religion, fine. But the LEGISLATOR may not do the same thing in terms of presenting legislation based upon those views. And if you have a problem with such a system being "flagrantly anti-democratic," then you should talk to the drafters of the Constitution, who set up this system as the very first item in the Bill of Rights.

Time for rest.

Boomr said...

Carl, I may share a couple of libertarian beliefs, but I'm a registered independent. For instance, I'm in favor of U.S. participation in international law, which seems to violate many libertarian codes of quasi-isolationism.

@nooil4pacifists said...

I've replied in a new post here; please post future comments on that page.