It has been a busy week, but it is, I guess, time to put some thoughts on paper.
Two important United States Supreme Court decisions were announced this week, King v. Burwell, the “Obamacare” case, and Obergefell v. Hodges, the gay marriage case. The internet, Twitter, and Facebook have been filled with cheers, jeers and rants from both sides (along with some calm and reasoned voices, where you can find them).
I believe that the Constitution is the law of the land. I also believe that it is written in reasonably understandable English, and that it means what it says. In addition, when it is silent on a subject, no additional reasoning can be inferred from its text. If the country wishes to add or subtract from the original text, there are prescribed ways of changing it. Indeed, we have amended it 27 times. I also believe that laws written by Congress (or state legislatures) should mean what they say. The King decision is quite frightening. Whether you are a fan or a foe of the Affordable Care Act should not matter. If the law does not read as Congress intended when they passed it (perhaps reading it before passing it would be helpful), then Congress can go back and fix it. In this decision, SCOTUS has decreed that a majority of an un-elected committee of lawyers can determine what Congress intended. This is a major blow against rule of law.
With cries of jubilation and accusations of bigotry and hatred on the one side, and weeping and gnashing of teeth and condemnation of the sins of others from the other side, Obergefell has aroused the passions of many. This decision, like Roe v. Wade, was based on feelings and opinions, not law. Marriage is not mentioned in the Constitution at all; if the people wish to regulate marriage, then laws should be passed to do so. Having five justices rule by decree, whether the majority of the citizens agree or not, is antithetical to democratic government.
The underlying problem with the same sex marriage debate is that we are not all talking about the same thing. There are two definitions, or aspects, of marriage in play. First we have the religious aspect . Marriage, as a religious institution, was established by God (“For this reason a man will leave his father and mother and be united to his wife, and the two will become one flesh.”– Ephesians 5:31). Pretty straightforward, and as long as marriage remains a religious rite, then religion should make the rules (or in the case of Christians, follow the rules given by God as spelled out in the Bible).
Then there is the legal aspect of marriage. Government has intervened, and we are required to have a license to be “legally” married. Our tax rate is partly determined by our marital status. Health care decisions, employment benefits, and succession are determined by marital status. I can completely understand wanting those benefits legally. A civil partnership between two people (or more—believe me, that is coming) that establishes these benefits seems completely fair. If you want to have such a civil arrangement with your gay partner and call it marriage, go for it.
What Obergefell should not do, however, is force churches, or their members, to recognize or participate in such arrangements. The majority opinion was pretty vague about protecting religious rights. The First Amendment protects our right to the free exercise of religion. For me, and many Christians, that means we strive to live our daily lives according to our religious beliefs, and requiring us to not only tolerate non-Biblical activities, but agree and participate in them, is infringing on that right.
One more thing…it distresses me to see disagreement labeled as hatred or bigotry. The angry voices coming from both sides are not helpful. As Jesus said, “A new commandment I give to you, that you love one another, even as I have loved you, that you also love one another.”—John 13:34
I know that there are some people, dear to me, who will disagree with some of my thoughts, and that is okay– I will still love you unconditionally. Let us treat each other with kindness and respect.
Yesterday the Supreme Court upheld a ruling allowing the town of Greece, NY, to open city council meetings with prayer. In an article on National Review Online, Kevin D. Williamson discusses the common sense approach of the majority of the Court, as well as the phenomenon of “evangelical atheism.”
The vandals have lost one at the Supreme Court. The psalmist surely did not have Anthony Kennedy in mind when he proclaimed “Let the daughters of Judah rejoice because of thy judgments,” but the trumpets should sound any and every time Madalyn Murray O’Hair’s grubby little cult suffers a political defeat.
The case was Town of Greece, N.Y. v. Susan Galloway et al., and the question was whether the town fathers of a Rochester suburb you’ve never heard of were doing violence to the Bill of Rights by allowing citizens and clergymen to lead prayers before meetings of the town board.
The plaintiffs in the case were Susan Galloway, a Jewish woman who describes her history of activism as beginning with a refusal to sing Christmas carols as a junior-high student, and Linda Stevens, a retired public-school functionary and atheist who served in the august position of president of the Greater Rochester Chapter of the National Organization for Women and as vice president of Americans United for Separation of Church and State. Ms. Stevens complained that the overwhelmingly Christian character of the locals’ prayers made her feel like she would “stick out,” and so, naturally enough, she filed a lawsuit, apparently immune to the irony that her response to what she perceived as a situation encouraging conformity through social pressure was to seek federal action mandating conformity at gunpoint.
Justice Clarence Thomas’ opinion relied on very plain reading of the Constitution’s Establishment Clause:
Justice Clarence Thomas, who has done the people of this country a magnificent service over the years by restraining his imagination and boring us all to death with the letter of the law, noted in his concurrence that the First Amendment is a constraint upon Congress, not upon the township of Greece, N.Y.; that it explicitly permits not only the encouragement of religious belief but the actual establishment of churches at the state and local level; that the men who wrote the First Amendment and who fought in the Revolution did not seem to believe that the Bill of Rights was in conflict with Massachusetts’s deciding to have an established Congregationalist church or with Pennsylvania’s choosing not to establish any church, in deference to the nonconforming sensibilities of its Quaker-dominated public culture, but rather that the First Amendment ensured that the federal government was bound to permit either outcome; and, finally, that even if the “no establishment” rule were to be applied to Greece, N.Y., permitting the offering of prayers before a board meeting is not the same thing as establishing a church. An established church is a government-supported ministry paid for by tax dollars, not a social convention that makes the local NOW president feel like she sticks out, which experience with that organization suggests she very well may under many diverse circumstances.
On the Opinion page of the New York Times, several writers are debating this question: In his State of the Union address, Obama said he would work around Congress. What are the strengths and risks of such action?
Elizabeth Price Foley, a professor of Constitutional law at Florida International, writes an essay on the dangers of unfettered executive power that is worth reading.
When the president fails to execute a law as written, he not only erodes the separation of powers, he breeds disrespect for the rule of law and increases political polarization. The president’s own party — for example, the current Democrat-controlled Senate — will face intense pressure to elevate short-term, partisan victory over defending constitutional principles. If partisan preferences prevail, Congress will be unable, as an institution, to check presidential ambition and defend its lawmaking prerogative.
Once such precedent is established, damage to the constitutional architecture is permanent. The next president of a different party will face similar pressures and undo all the previous actions. He will initiate a new round of unilateral lawmaking, satisfying his own political base. The law will fluctuate back and forth, and our legislature will become little more than a rubber stamp for a single elected individual, which is not how representative government is supposed to work.
There is gridlock in Congress right now for a very good reason: the citizens of the United States are sharply divided about several issues. The separation of powers provides that one side cannot take unilateral action with which a majority or near-majority disagree. Congressional inaction is a feature, not a defect, of our system. Presidential action or refusal to enforce laws already on the books endangers true representative government, no matter which ideology or faction he represents.
This diagram was posted on my son Jacob’s Facebook page, and it appears that it originated here.
As far as labels go, I guess this is pretty accurate, if divisions of political thought are based entirely on the services one thinks the government should provide. Jacob styles himself a libertarian; in his 16 year old wisdom, the less government, the better (wonder where he got that idea?). He says voluntarism would be ideal, but would eventually result in anarchy, which has never been successfully implemented. Humans, being human, are not perfect, and there are those who would take advantage of those weaker than themselves. His choice is apparently minarchism, with the least government necessary to maintain peace.
Our Founding Fathers put a lot of thought into the subject. Under the Articles of Confederation, each state was a State in the classical sense–a country unto itself; they were bound together by a loose agreement basically for common defense, and the Founders realized that something more was needed. During the summer of 1787, they debated the proper role of a national government. Having just fought a war to free themselves from a tyrannical government, they were acutely aware of the danger of too much power in the hands of a few. The Constitution hammered out in Philadelphia was an effort to limit the powers of the central government to only those which were needed. As James Madison wrote, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”—Federalist No. 45. They were so sure of those limitations that some thought a Bill of Rights was unnecessary—“[A Bill of Rights] would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?”—Alexander Hamilton (1788), Federalist No. 84. It seems obvious to me that Hamilton had an unfounded faith in future officials to follow the simple directions given by the Constitution.
What were the enumerated powers given to the national government? The Constitution is pretty specific, with a few exceptions. Article 1, Section VIII gives Congress the power to collect taxes and borrow money; to regulate commerce between the states themselves and with other countries; establish naturalization regulations and bankruptcy courts; coin money and punish counterfeiters; provide for copyrights and patents; regulate the armed forces and the militias, and declare war; and be the sole legislative authority for the District of Columbia. The President was to execute the laws passed by Congress; command the armed forces; and make treaties with other countries (with approval by the Senate).
The early Executive branch had only four departments—Department of State, Department of War (Defense), Department of Treasury, and Department of Justice. There are now fifteen Cabinet departments, most of which the Founders could not have envisioned. Why would you need a Department of Education when the Constitution does not even mention Education? Our government now has its fingers in many parts of our lives that Mr. Madison would find astounding.
Going back to the diagram, where does that leave us? What goods and services should be provided by government? The diagram does not distinguish between federal and state governments, and some of those services are primarily state provided (or should be). The Constitution obviously envisions those included under classical liberalism. The “safety net” services are a stretch requiring some very creative reading of the Enumerated Powers, but most Americans, including me, would be reluctant to give them up.
Should or could we go back to a government limited to the powers granted in the Constitution? At this point, it would be very difficult, and would have to be done over a considerable period of time. Folks are reluctant to give up benefits they already have, and I do not see that happening any time soon.
More to come…
But Harry Reid is well aware of something else: the fact that more and more voters are ignorant of the way our government is set up and of the reasons it was designed that way. So he knows that he can get away with these ignorant-sounding remarks. He is very likely to also realize that some people who actually do know how the government is set up don’t care, or would even like that system changed. Some on the left think it’s archaic and gets in the way of what they want Reid and company to do.
Read the whole thing…