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ACLU Derangement Syndrome:

There's Bush Derangement Syndrome, there's Those Darned Jews Derangement Syndrome, there's Those Awful Somdomites Derangement Syndrome, and there's ACLU Derangement Syndrome. Clayton Cramer points to a very interesting lawsuit in Italy (I quote the Times (London) story, which makes the matter seem somewhat more troubling than the Washington Times story that Cramer links to):

AN ITALIAN judge has ordered a priest to appear in court this month to prove that Jesus Christ existed.

The case against Father Enrico Righi has been brought in the town of Viterbo, north of Rome, by Luigi Cascioli, a retired agronomist who once studied for the priesthood but later became a militant atheist.

Signor Cascioli, author of a book called The Fable of Christ, began legal proceedings against Father Righi three years ago after the priest denounced Signor Cascioli in the parish newsletter for questioning Christ's historical existence.

Yesterday Gaetano Mautone, a judge in Viterbo, set a preliminary hearing for the end of this month and ordered Father Righi to appear. The judge had earlier refused to take up the case, but was overruled last month by the Court of Appeal, which agreed that Signor Cascioli had a reasonable case for his accusation that Father Righi was "abusing popular credulity".

Signor Cascioli's contention — echoed in numerous atheist books and internet sites — is that there was no reliable evidence that Jesus lived and died . . . .

Signor Cascioli's one-man campaign came to a head at a court hearing last April when he lodged his accusations of "abuse of popular credulity" and "impersonation", both offences under the Italian penal code. . . .

But then, after noting the story, the post goes on:
Now, I would like to think that the freedom of religion and freedom of the press provisions of the First Amendment would prevent such a suit from going forward in the U.S.--but you never know what cleverness the ACLU will pull out of its bag of magic tricks next.

In Britain, a prominent scientist is arguing that religion is a form of child abuse [quote omitted] . . . .

Ah, that's it! The ACLU will argue that children have a right to not be mentally abused by exposure to religion. This was, after all, the policy of the Soviet Union, which prohibited teaching religion to those under 18, and the ACLU's founder was a defender of Soviet practices on civil liberties. . . .

Utterly missing is any foundation whatsoever supporting the assertion that the ACLU would support any such speech restriction. That the ACLU's founder was originally a defender of the USSR is quite right, but what happened in the 1930s tells us very little about what the ACLU is likely to do 70 years later. (It's also quite incomplete, I think, without an acknowledgment that Baldwin later turned into a severe critic of the USSR and of Communism.) The ACLU has on balance been a strong supporter of free speech claims; not as strong as I might have liked at times (including in some cases involving private religious speech in public schools and , though note its correct view in this religious speech case), but hardly a fit target for aspersions such as these.

When I queried Mr. Cramer about this (with a message that read "Interesting subject -- but do you have any foundation whatsoever for the suggest that the ACLU would make any such arguments?"), he responded:

Its long history of opposing religious instruction in public schools, even when multiple beliefs were being taught, with the permission of the parents? I'm thinking of McCollum v. Board of Education (1948). I don't know if they participated in that suit or not, but I do know that they have participated in suits attempting to suppress far less substantial expressions of Christianity, such as the Los Angeles County seal idiocy.
But surely there's a very big difference -- a difference that First Amendment law has long made clear -- between what government agencies may say, and what private institutions and individuals (including churches) may say. Even many conservatives would agree, for instance, that government-run schools shouldn't teach specific aspects of religious doctrine (e.g., that Presbyterianism provides the proper theology, and all else is error and heresy); even Justice Scalia's opinion in the Ten Commandments case, for instance, was limited to government speech that took no sides within the Christian/Jewish/Muslim monotheistic tradition. Yet this tells us nothing about what churches or priests may say on their own. Mr. Cramer goes on to write:
Most people that aren't lawyers can see that the ACLU's mission hasn't changed since Roger Baldwin wrote that article about the Soviet Union.
I've criticized the ACLU often before, probably more often than I've defended them. I'm sure I'll criticize them often in the future.

But, unfortunately, it seems to me that much criticism of the ACLU of the right reflects more by way of knee-jerk hostility than simply well-founded ideological disagreement. The four Derangement Syndromes I noted in the first paragraph (yes, the term is partly facetious; I don't think it's literal "derangement") have different moral qualities -- but what they share in common is a hostility that causes the speaker to miss contrary evidence, and to lose a sense of perspective. Bush has this effect on some; Clinton had this effect on some in the past; the NRA has this effect on some; the ACLU has it on some, too.

Noah Klein (mail):
Professor Volokh,

I thank you for your interesting post. I think of myself as a civil libertarian, yet even I see that in a few instances ACLU takes its position to an extreme to threaten other freedoms. Unlike yourself, I am more likely to defend the ACLU then criticize it. But any person who places utter loyalty or complete hatred towards an individual or an institution either has to subsume their own beliefs to him or will be very disappointed. Those we disagree with are not always and those we agree with are not always right.

Once again, I thank for making this interesting point.

Noah
1.9.2006 1:20pm
Dave:
Don't forget Bush Derangement Syndrome and "Bush Derangement Syndrome" Derangement Syndrome (BDSDS)

Dave
1.9.2006 1:27pm
Joel B. (mail):
It's odd Eugene, you read Clayton's statement as one of ACLU Derangement Syndrome. It seems you read Clayton's statement uncharitably. Clayton's point or intention seemed to me to be humorous, but what made it good humor is that it feels like it has a hint of truth. Now maybe you completely disagree, but to me, and many the ACLU seems fairly consistently opposed to religion. Now maybe it's wrong or a symptom of ACLUDS that one should tease on such stereotype, let alone believe it, but hey maybe that's what you're getting at.

I, however, thought it was a good little riff, and was most apparently a relatively throw away line. The apparent "Aha That's It!" Has the tinge of sarcasm and yet truth.

You're certainly entitled to see ACLUDS where you think it exists, but I guess I just disagree. Wish you the best.
1.9.2006 1:29pm
Clayton E. Cramer (mail) (www):
To quote the 6th Circuit Court of Appeals:

Our concern is that of the reasonable person. And the ACLU, an organization whose mission is "to ensure that . . . the government [is kept] out of the religion business," does not embody the reasonable person.
I guess this ACLU Derangement Syndrome goes quite a way, doesn't it?

I also pointed out that this decision--which is both a serious criticism of the ACLU, and an important decision about Ten Commandments cases--received no discussion from a number of law professors who blog, and some of whom had mentioned the very harsh criticism in Kitzmiller--and they were informed of it.

Why is the ACLU largely exempt from criticism by law professors for its fanaticism?
1.9.2006 1:33pm
Some Guy (mail):
I find it interesting that you have so much faith in the leadership of the ACLU to remain reasonable. Tell me, how do you think the average ACLU member in 1960 would have responded if you had told them that, in 2005, the group would be defending the free speech rights of advocates of child molestation and sucessfully securing the release of known Islamic terrorists who are sworn to kill as many Americans as possible?

Sure that 1960 ACLU member might take the high road and say everyone deserves a defense, even if they have none.

But how do you think that 1960 ACLU member would react if you told them the ACLU would be busy pissing away its credibility trying to get the Boy Scouts thrown off city land in San Diego because the group wouldn't allow homosexual scoutmasters? Once he knew where the organization would wind up in 2005, do you think that 1960 member would agree with you on relying on the reasonability of the ACLU's leadership? What sorts of causes will the ACLU invest itself in when villanizing the Boy Scouts, ostracizing Christians, and securing the release of dangerous enemies in a time of war has already been done?

The ACLU has been a joke for more than ten years. It's a shame, because the group really did champion some worthwhile causes every once in a while, despite themselves.
1.9.2006 1:39pm
Medis:
I suspect that Professor Volokh is about to become well-acquainted with the truism that those "suffering" from any particular "DS" are convinced that their particular feelings about the person or group in question are well-founded.
1.9.2006 1:39pm
AppSocRes (mail):
I certainly don't qualify as a defender of the ACLU, but a friend of mine who does once pointed out that some of the more outrageous stances of the ACLU happen because local branches of the ACLU independently decide what causes they will adopt. In more conservative parts of the country the ACLU will probably operate a little left of center on average. In more liberal areas it may adopt cases that appear extreme to all but the truest of believers. I think it's worth remembering that the UCLA is not the tightly organized conspiracy that its detractors tend to think it is.
1.9.2006 1:49pm
Joel B. (mail):
Medis-

I suppose then, that any diagnosis then of "DS" is unassailable. After all, if well-foundedness is delusional, then how can the supposed delusional, ever convince someone else that his or her position is genuinely well founded.

Is there a corrorally "defensiveness syndrome" which senses delusion where there is not?

Or perhaps, who gets to be the impartial arbiter of delusion or not, is it an office? Who can we vote in.
1.9.2006 1:54pm
Miguel Andres (mail):
I am confused here. Isn't the term, "ACLU Derangement Syndrome," redundant, as "ACLU" and "Derangement" have the same meaning? For instance, abortion is obviously not a reasonable activity about which reasonable people can disagree. Abortion is the pre-meditated taking of innocent human life, for all intents and purposes, murder. The ACLU headlies its support for abortion on the front page of its website, hence the ACLU is a deranged, murder-mongering organization, let alone a generally "anti-free speech rights for Christians" organization. The ACLU needs to be opposed in just about every thing it does. There is much truth in the remark that ACLU means "American Criminal Liberties Union."
1.9.2006 1:57pm
Neal R. (mail):
There is also, of course, Liberal Derangement Syndrome and Conservative Derangement Syndrome. For example, Liberals are treasonous supporters of Islomafascist evildoers who want to destroy religion and think that adults should be allowed to have sex with children, and Conservatives are ignorant science-hating rubes want to repeal all civil liberties, reinstitute Jim Crow, and make Bush a king. I learned all of this on the comment threads on this blog.
1.9.2006 1:58pm
TJ (mail):
AppSocRes,

the UCLA is not the tightly organized conspiracy that its detractors tend to think it is.

As an Oregonian spectator of PAC-10 sporting events, I'd be inclined to think it is ;)

Seriously- the ACLU has recently gone to court to defend the rights of Christians: here.
"There is a distinction between speech by a school and speech by individual students," said ACLU of New Jersey cooperating attorney Jennifer Klear of Drinker, Biddle &Reath in New York City. "The Constitution protects a student's individual right to express herself, including the right to express herself religiously."


There are more instances of that kind of stuff. People really do suffer from that derangement that Eugene noted above.
1.9.2006 1:59pm
go vols (mail):
The previous post is a perfect example of what Volokh is talking about.
1.9.2006 2:00pm
crptbr (mail):
I've never understood this animous to the ACLU either. It is simply an organization that raises funds to spend on legal defenses. They have no power to compel the courts or anyone to do anything. Like any organized group in a market democracy, they solicit voluntary contributions from individuals and spend the funds making their case in court. They have no special privileges. Most of what they stand for has little chance of becoming popular (by design), so there is little danger of them becoming sucessful demagogues.

If people don't like flag burning, bans on government enforced prayer, or forcing states to provide counsel for indigent defendents then their anger should lie with the US Constitution and the Judges who interpret it.
1.9.2006 2:04pm
Roger (mail):
Mr. Cramer, Law professors critique the ACLU's positions all the time. Very often they do it in the forms of legal briefs. Some have been filed by the these very bloggers. I also think that you are misquoting ACLU v. Mercer county, the court was simply stating that the views of the ACLU as to whether this was an endorsement were not enough to trigger the Lemon test, but rather there must be some fact-specific inquiry. For whatever reason, the ACLU seems to have not wanted to have conducted any discovery on the matter. I realize that you have strong feelings about this, but in this time of global terror we cannot be too careful about reading cases.
1.9.2006 2:08pm
Some Guy (mail):
Animus.
1.9.2006 2:09pm
Noah Klein (mail):
Some Guy, Joel and Dave:

This is the point. I disagree with many of actions you say the ACLU have taken against the Boy Scouts, for child molesters and so on. Yet this does not mean that they are trying to destroy Christianity.

Some Guy quotes the section of the Sixth Circuit that defines what the ACLU attempts to do with religion. It says their "mission is 'to ensure that . . . the government [is kept] out of the religion business.'" This is not the destruction of Christianity. I disagree with their ultimate aim here, because it is not only not practical, but also ignores the fact that over 90% of Americans are religious. We take our religion seriously. The goal of the ACLU is to enforce Jefferson's "wall of seperation." Yet the Court has not agreed with their position to wholly separate religion from government.

But if some future legislature or future society feels that it is more appropriate to enforce that wall are they trying destroy religion? I would posit no. The strength of religiousity in the United States has been that the government does not form an opinion on religion. People are able to make that choice. That is why we feel so strongly about our religions because we choose them for ourselves. I agree with the ACLU's trying to get public prayer out of school, because prayer in school, while practiced from the earliest part of our history until the court struck down, is an infringement on this choice. I disagree with the ACLU extending the non-establishment clause to student organizations for religion, because this is exactly what the freedom of religion is supposed to encourage and allow.

Noah
1.9.2006 2:09pm
Miguel Andres (mail):
The few examples that can be enumerated when the ACLU has sided with Christians are just the exceptions which prove the rule.
1.9.2006 2:19pm
Clayton E. Cramer (mail) (www):

For example, Liberals are treasonous supporters of Islomafascist evildoers who want to destroy religion and think that adults should be allowed to have sex with children...
You are being sarcastic, but make sure that you read these comments, where one poster, with reference to a guy convicted of raping a seven year old girl says,
I have some scepticism about whether this case involved rape.

Once, it's rape, twice, maybe still rape. Thousands of times, maybe there's something else going on. Sometimes rapists are able to control their victims enough to allow multiple assaults - handcuffs, or a threat to kill the mother, for example. But it is fashionable, and dead wrong, to describe all intergenerational sex as rape.
I suspec that most liberals do not support legalizing sex between adults and children, but they aren't unknown, either. The ACLU, for example, has argued that minors have a "liberty interest" in being able to have sex with adults—and then cite abortion and sexual activity cases where the ACLU can't seem to ever find a legitimate reason for state regulation.

It is reprehensible that the ACLU is making the argument that adults have a right to have sex with minors (and in the Limon case, it was the adult who was charged with a crime—not the minor) and that what is effectively an instruction manual in how to get away with molesting children is constitutionally protected free speech. If being angered by falsification of history and distortion of the Constitution constitutes "ACLU Derangement Syndrome," we need more of it.
1.9.2006 2:23pm
Clayton E. Cramer (mail) (www):
Roger writes:


I also think that you are misquoting ACLU v. Mercer county, the court was simply stating that the views of the ACLU as to whether this was an endorsement were not enough to trigger the Lemon test, but rather there must be some fact-specific inquiry.
I gave you a link to the decision. Show me that I'm wrong. The language is pretty clear, because the ACLU is, in fact, not a reasonable entity. It represents fanatics, of the sort that claimed the sight of a Ten Commandments stone in a public park in Michigan caused her "physical pain." Do you believe that?
1.9.2006 2:27pm
Noah Klein (mail):
Miguel:

That is the whole point behind this thread. The ACLU Derangement Syndrome. This is only a political and legal organization. Don't agree with them, if you don't agree with them. But don't demagogue them. They are what they are and REASONABLE people can disagree CIVILY about the positions that they advocate. You don't agree with almost all time. I agree with them some times and disagree with them other times. You might agree with the Concerned Women of America most of the time. I don't agree with them most of the time. But that does NOT mean that the CWA is an organization that is composed of Nazis trying to give the state control over women's bodies. If we can agree to disagree civily then maybe we can move closer to agreement on more substantive issues.

Noah
1.9.2006 2:27pm
Joel B. (mail):
Noah-

I pretty much agree with you.

My point was that, there was a touch of sarcasm, and yet that touch of truth, that even many readily admit that the ACLU goes overboard. Doesn't mean the ACLU is going to attempt to ban Christianity, but just that those who don't like the ACLU can take a little chuckle at the line. And think of how crazy the ACLU can be at times.

I think the poster who pointed out the local chapter nature of ACLU was probably right, The ACLU like many organizations has a range of opinions and the 80% or whatever that they do that goes unnoticed or I agree with, I tend to expect, but the over-the-top 20% is more obnoxious to me, then the countervailing 80%.
1.9.2006 2:27pm
Gordon (mail):
Clayton Cramer: based upon your comments to David Kopel's posts, I humbly suggest that you know all about fanaticism to the point of borderline derangement regarding a particular provision of the Bill of Rights.
1.9.2006 2:31pm
Medis:
Joel B.,

If I understand you correctly, I agree--all this talk of "syndromes" is pretty silly.

Indeed, Volokh states: "what they share in common is a hostility that causes the speaker to miss contrary evidence, and to lose a sense of perspective." Of course, we all do that sometimes (let our emotions get the better of us and as a result we end up overlooking contrary evidence and losing perspective).

So, I think it is fine to suggest to someone, during the course of a discussion or debate, that they might be overlooking something or losing perspective--as long as one then explains exactly what one thinks this person is overlooking. But accusing people of having some sort of "syndrome" that renders then generally incapable of rational thought really deosn't advance the cause of civil discourse.
1.9.2006 2:33pm
Clayton E. Cramer (mail) (www):

Some Guy quotes the section of the Sixth Circuit that defines what the ACLU attempts to do with religion. It says their "mission is 'to ensure that . . . the government [is kept] out of the religion business.'" This is not the destruction of Christianity. I disagree with their ultimate aim here, because it is not only not practical, but also ignores the fact that over 90% of Americans are religious. We take our religion seriously. The goal of the ACLU is to enforce Jefferson's "wall of seperation." Yet the Court has not agreed with their position to wholly separate religion from government.
At least partly because the ACLU's position is contrary to the evidence of history. In particular, the ACLU's goal of "neutrality between religion and irreligion" is clearly contrary to the actions of the First Congress, and the actions of the federal government throughout the early Republic. Even President Jefferson didn't have a problem allowing the use of public buildings in the District of Columbia for church services, and both he and President Madison attended church services in the Hall of Representatives. Section 29 of townships in Ohio was specifically reserved for funding churches, by an act of Congress.

If the ACLU wants to promote a particular agenda, they have that right. But because judges so often accept the ACLU's arguments--no matter how clearly incorrect--the ACLU has transformed the United States for the worse.
1.9.2006 2:34pm
Clayton E. Cramer (mail) (www):

Clayton Cramer: based upon your comments to David Kopel's posts, I humbly suggest that you know all about fanaticism to the point of borderline derangement regarding a particular provision of the Bill of Rights.
Care to give some examples? Do you mean where I have argued that mandatory gun registration is ineffective, but probably constitutional? Or do you mean where I argue that "arms" doesn't include nuclear weapons? Or do you mean where I argue that "right of the people" should be interpreted the same way throughout the Bill of Rights and the Constitution?
1.9.2006 2:37pm
Richard Aubrey (mail):
An over-the-top twenty percent is more than enough to ruin an organization.
This being a blog of lawyers, let me say that I am not promoting legal action against the ACLU. I am, however, predicting that they can destroy themselves by making themselves even less popular with normal people.

BTW, the ACLU's mere existence is enough to cause a chilling effect, even in issues where reasonable people would mostly agree there was no problem. All it takes is the local getting interested.
And, if I recall my ACLU pitches correctly, "chilling effects" are damn' near actionable by themselves. Unless they're useful, of course, when we politely pretend they aren't happening.

The worst thing--for ACLU public relations--is talking to members. They make even the most over-the-top official statements sound like they came from Dr. Dobson.
1.9.2006 2:38pm
Captain Holly (mail) (www):
...some of the more outrageous stances of the ACLU happen because local branches of the ACLU independently decide what causes they will adopt.

I would agree with this. Consider the recent controversy over Salt Lake City's transfer of a portion of Main Street to the LDS Church (background at http://deseretnews.com/dn/view/0,1249,635171857,00.html). After the ACLU's challenge to the city's decision was smacked down by the 10th Circuit, the local branch was all ready for a Supreme Court Appeal. The grown-ups at the national headquarters correctly decided that it would be a waste of time and money and declined to file an appeal.

Was this an example of anti-Mormon bias on the part of the Utah ACLU leadership? Hard to say, but their Ahab-like obsession with the Plaza issue over the past 6 years has created precisely that impression among many Mormons here in Utah.
1.9.2006 2:38pm
JosephSlater (mail):
While I think that many of the comments in this thread adequately demonstrate what E.V. was referring to, I was especially struck by this one, by Clayton C.:

"But because judges so often accept the ACLU's arguments--no matter how clearly incorrect ..."

So if the ACLU weren't making these "clearly incorrect" arguments, judges wouldn't accept them? Wow, I need to join an organization like that, so judges will accept my arguments entirely without regard to whether they are correct.
1.9.2006 2:46pm
Gordon (mail):
Clayton Cramer: Since I don't want to go through multiple past posts on the subject, I will take your word for it and apologize to you for my remark.

Back on the main topic, the ACLU isn't the only party in this nation that has spoken on this topic. Here's what that noted radical Sandra Day O'Connor had to say about it this year:

Reasonable minds can disagree about how to apply the Religion Clauses in a given case. But the goal of the Clauses is clear: to carry out the Founders' plan of preserving religious liberty to the fullest extent possible in a pluralistic society. By enforcing the Clauses, we have kept religion a matter for the individual conscience, not for the prosecutor or bureaucrat. At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish. The well-known statement that "[w]e are a religious people," has proved true. Americans attend their places of worship more often than do citizens of other developed nations, and describe religion as playing an especially important role in their lives, Pew Global Attitudes Project. Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?


I know it's a dreaded policy argument sullying the purity of sterile constitutional doctrines, but it's the most persuasive thing I have yet seen written on the subject.
1.9.2006 2:51pm
Clayton E. Cramer (mail) (www):

Was this an example of anti-Mormon bias on the part of the Utah ACLU leadership? Hard to say, but their Ahab-like obsession with the Plaza issue over the past 6 years has created precisely that impression among many Mormons here in Utah.
This is one of the core problems with the ACLU--there is a streak of fanaticism that drives many of their actions. I agree, for example, that there are legitimate arguments about how death penalty cases should be tried, standards of proof, and even over methods of execution. But some of their actions are more clever than honest--for example, some years ago, when they sued to prevent one of the states from using lethal injection on the grounds that the drugs in question hadn't been FDA approved--while at the same time arguing against the use of the gas chamber in California on the grounds that it was cruel. I am an opponent of the death penalty, but there's no question that it is Constitutional. If you argue against cyanide because it is painful (and I don't doubt that it is), but then argue against lethal injection, which is pretty clearly painless? That's just the dishonesty of the fanatic.

I can see why the ACLU got involved with lawsuits against mandatory prayer in public schools--but when they threaten to file a lawsuit against Los Angeles County because there is a tiny little cross on a mission in the county seal? That's a historic reference, and is no more an establishment of religion than the presence of the classical goddess Pomona (also removed after threat of lawsuit).

There are legitimate arguments about what constitutes obscenity--but the ACLU was prepared to argue that virtual child pornography is Constitutionally protected. This is a position that is historically indefensible, and shows what lunatics run the organization.
1.9.2006 2:52pm
Clayton E. Cramer (mail) (www):

So if the ACLU weren't making these "clearly incorrect" arguments, judges wouldn't accept them? Wow, I need to join an organization like that, so judges will accept my arguments entirely without regard to whether they are correct.
It's called peer pressure. It may also be because judges don't have the time to check whether the claims being made to them are correct or not. For example, Lawrence v. Texas (2003) contained some claims about the relative recency of specifically homosexual sodomy laws that took about 20 minutes for me to demonstrate were false.
1.9.2006 2:55pm
KMAJ (mail):
Noah,

I think the ACLU, while still sometimes taking on an important watchdog role, has been infected by politics and money (large contributors) and has recently become much more activist politically. Certainly we can agree that one's support or opposition to them is affected by personal opinion. I do think it would be a fair assessment to claim that the ACLU does have a secularist agenda, while it can be debated whether or not it has deviated very far from ACLU founder Roger Baldwin's beliefs.
1.9.2006 3:01pm
Eugene Volokh (www):
Gordon: The funny thing is that I first got to know Mr. Cramer through his work on gun issues, and there he tends to be quite thoughtful, careful, and non-knee-jerk; he comes down on the pro-gun-rights side, but he looks at the contrary evidence and notes the limits of the evidence on which he is relying. All of us stray even in subjects where we're usually careful, but on balance I've found his work there to be quite good. That's one thing that quite puzzles and disappoints me about his posts related to homosexuals and to the ACLU (and occasionally to "liberals" more broadly) -- he seems to have blinders in those areas that lead him routinely into error.
1.9.2006 3:02pm
Clayton E. Cramer (mail) (www):

I know it's a dreaded policy argument sullying the purity of sterile constitutional doctrines, but it's the most persuasive thing I have yet seen written on the subject.
Except that O'Connor's claim is wrong:
Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?
The "separation of church and state" idea has not been accepted by the courts until the last 40 years or so. For most of American history, governments either directly subsidized particular denominations, or generally promoted Christianity. In the 19th century, as America became more religiously diverse (meaning that there was now a large Catholic and a small Jewish population), governments continued to accept the idea that government could encourage or promote religion as long as it did so fairly and evenly. Hence, the provisions that were struck down in McCollum v. Board of Education (1948), that put Protestants, Catholics, and Jews on an equal footing in providing religious instruction in public schools. I rather doubt the "release time" measure approved in Zorach v. Clauson (1952) would be acceptable to the ACLU today, and therefore the Supreme Court would have little choice but to rule it as unconstitutional.
1.9.2006 3:06pm
PersonFromPorlock:
Eugene, can we at least stipulate that there's no such thing as 'Rap Derangement Syndrome'? Au contraire....
1.9.2006 3:07pm
Duncan Frissell (mail):
Eugene,

If you want an example... What about an ACLU suit that resulted in a threat to imprison persons offering Christian prayers:

State to appeal ruling that limits prayers in House


Speaker says he'll take case to the U.S. Supreme Court

By Mary Beth Schneider

Indiana will take its fight to the U.S. Supreme Court, if necessary, to overturn a federal court ruling that bars invoking Jesus and other sectarian prayer in the legislature, House Speaker Brian Bosma vowed Wednesday.


Threatening to jail those who pray seems to be a rather dramatic example particularly since the national legislature is exempt from these sorts of restrictions.
1.9.2006 3:08pm
Clayton E. Cramer (mail) (www):

That's one thing that quite puzzles and disappoints me about his posts related to homosexuals and to the ACLU (and occasionally to "liberals" more broadly) -- he seems to have blinders in those areas that lead him routinely into error.
Translation: Professor Volokh doesn't agree with me on these issues.
1.9.2006 3:09pm
JosephSlater (mail):
I wrote:
So if the ACLU weren't making these "clearly incorrect" arguments, judges wouldn't accept them? Wow, I need to join an organization like that, so judges will accept my arguments entirely without regard to whether they are correct.

Clayton wrote:
It's called peer pressure. It may also be because judges don't have the time to check whether the claims being made to them are correct or not. For example, Lawrence v. Texas (2003) contained some claims about the relative recency of specifically homosexual sodomy laws that took about 20 minutes for me to demonstrate were false.

Peer pressure? So the ACLU is to federal judges as smoking and drinking teenagers are to their peers? Again, I really do need to join an organization that has such a fearsome influence.

As to Supreme Court judges and their clerks not having the time to check claims that you could disprove in 20 minutes, I guess the Republican presidents that appointed nearly all the sitting Supreme Court justices were also suffering from the dread ACLU peer pressure in appointing those justices instead of appointing you.
1.9.2006 3:10pm
Clayton E. Cramer (mail) (www):

As to Supreme Court judges and their clerks not having the time to check claims that you could disprove in 20 minutes, I guess the Republican presidents that appointed nearly all the sitting Supreme Court justices were also suffering from the dread ACLU peer pressure in appointing those justices instead of appointing you.
Sad to say, the longer Supreme Court Justices sit up there, the farther left they seem to get. Justice O'Connor is a good example. Do you suppose that anyone would have guessed, in 1981, that she would be the vote that struck down Texas's homosexual sodomy law?

By the way, I'm being charitable in assuming that the problem is "not enough time to check for accuracy." Realistically, judges figure out the result that they want, then send their clerks out to find the justifying precedents and arguments.
1.9.2006 3:12pm
Public_Defender:
There are legitimate arguments about what constitutes obscenity--but the ACLU was prepared to argue that virtual child pornography is Constitutionally protected. This is a position that is historically indefensible, and shows what lunatics run the organization.
Clayton, you forgot to mention that the ACLU won that argument in the Supreme Court. Oops.
1.9.2006 3:13pm
Clayton E. Cramer (mail) (www):

Clayton, you forgot to mention that the ACLU won that argument in the Supreme Court. Oops.
I didn't forget at all. It is a reminder of the enormous power that the ACLU has with the federal bench, even when they are wrong on historical grounds and public policy grounds. I would be surprised if you could even find 10% of the American public that agreed with the Supreme Court on that one. If the news media had given it the attention that Kelo received, Congress would have been pressured to do something. Maybe not the right thing, but there would have been rage. Most Americans that I tell about that case are enraged.
1.9.2006 3:16pm
Antinome (www):
JoelB said
Clayton's point or intention seemed to me to be humorous, but what made it good humor is that it feels like it has a hint of truth. Now maybe you completely disagree, but to me, and many the ACLU seems fairly consistently opposed to religion. Now maybe it's wrong or a symptom of ACLUDS that one should tease on such stereotype, let alone believe it, but hey maybe that's what you're getting at.



The ACLU though is not in anyway consistently opposed to religion though its opponents often portray it that way. Therefore this is not some mere good humor but in fact a unfair slam.

The ACLU consistently supports individual religious liberty as well as anti establishment cases.

More generally its positions can be found here

Agree or disagree, it can hardly be characterized that such positions could be construed to support a suit about the existence of any particular god.

Antinome


"Notwithstanding the general progress made within the two last centuries in favour of this branch of liberty, &the full establishment of it, in some parts of our Country, there remains in others a strong bias towards the old error, that without some sort of alliance or coalition between Govt. &Religion neither can be duly supported. Such indeed is the tendency to such a coalition, and such its corrupting influence on both the parties, that the danger cannot be too carefully guarded agst. And in a Govt. of opinion, like ours, the only effectual guard must be found in the soundness and stability of the general opinion on the subject. Every new &successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion &Govt. will both exist in greater purity, the less they are mixed together."

James Madison to Edward Livingston, July 10, 1822
1.9.2006 3:19pm
Medis:
I always find it interesting when people argue that the ACLU (and/or Supreme Court) must have been on the wrong side of a free speech case by observing that the speech in question is enormously unpopular.
1.9.2006 3:25pm
Andy (mail) (www):

There are legitimate arguments about what constitutes obscenity--but the ACLU was prepared to argue that virtual child pornography is Constitutionally protected. This is a position that is historically indefensible, and shows what lunatics run the organization.


Really? Can you show me where in the Federalist Papers Hamilton, Madison, and Jay argue against the use of Photoshop? Can you give me a specific cite where Jefferson and Frankin opposed the use of age regression software?

Seriously, there's is nothing "lunatical" about the arguement that the posession of digitally-generated sexually explicit images of minors (which do not depict actual persons) is not inherently illegal. I respectfully respect your right to call such "virtual" images repulsive and perverted (and in fact, I would generally agree with that assertion), but I also like the idea that there is an organization out there willing to fight for someone's legal right to dissagree.
1.9.2006 3:26pm
Mr Diablo:
EV forgot to mention David Kopel Feminism Derangement Syndrome from his post about how feminism was to blame for the particularly ridiculous judge and petitioner in the David Letterman flap out in New Mexico state court. When the DSM-IV recognizes it, then maybe DK will be able to get some help. Does Volokh.com offer health benefits to its bloggers?

Also, Clayton, I'm not one usually to harp on factual errors in postings, but O'Connor was the sixth vote on Lawrence v. Texas; she could have voted consistently with her position in Bowers v. Hardwick, and the Texas law would still have been stricken from the code.

As someone else noted, Derangement Syndrome does seem to be quite common on all-message boards. For example, Duncan Frissell's post above suggesting that the ACLU wanted to jail Indianans who prayed in public. No, no, Duncan, that might work on O'Reilly or on talk-radio, but we all can investigate here and see that what we've got is a ACLU suit to stop state-sanctioned prayers from kicking off sessions of the Indiana legislature. If anyone goes to jail here, it will be because he violated a Federal Court's order -- and if we cannot agree on that, then there really isn't much to talk about at all. Ask that nitwit judge from the Alabama Supreme Court how well that worked out for him.
1.9.2006 3:27pm
Clayton E. Cramer (mail) (www):

The ACLU consistently supports individual religious liberty as well as anti establishment cases.
Uh, no they don't. Citing the ACLU's puff pieces as evidence shows a distinct lack of critical thinking.

We've already seen one recent example--the lawsuit against the Indiana House of Representatives in which the objection was not that the invocation was ALWAYS Christian, but that Christian clergy dominated the giving of the invocation--and that sometimes (a minority of the invocations), the prayer was explicitly Christian.

I could understand if the objection was that particular denominations or religions had a monopoly, or it a particular denomination or religion had disproportionate "air time," but the judge's decision complained that Christians were dominant. Well, what's the surprise? It is Indiana--where Christians are also dominant among the voters.

There are cases where the ACLU has argued that a creche is a religious symbol--but a menorah is not. Fortunately, even the federal courts weren't prepared to go along with a lie that outrageous.
1.9.2006 3:28pm
Clayton E. Cramer (mail) (www):

I always find it interesting when people argue that the ACLU (and/or Supreme Court) must have been on the wrong side of a free speech case by observing that the speech in question is enormously unpopular.
Who argued that? I didn't. I argued that on historical grounds, the ACLU's position was wrong. The sentence observing that the Supreme Court took a lunatic fringe position was completetely independent of that.
1.9.2006 3:31pm
Medis:
Mr. Diablo,

And Justice O'Connor, at least, believed that her vote in Lawrence WAS consistent with her vote in Bowers.
1.9.2006 3:31pm
Duncan Frissell (mail):
More ACLU examples:

I don't have cites but the ACLU has has been promoting bans on public sectarian prayer by military chaplains, bans on grace at service acadamy meals (including grace said privately by the cadets), bans on proselytization of unbelievers by military chaplains or other service members (even though advocates of communism, the New York Yankees, the Ford F-250 pickup, or Metallica remain free to proselytize in the course of their military service).

They also have advocated injuctions against the private use of certain words in the California Car Rental discrimination case and the publication of names and contact information of licensed professionals offering reproductive health services in the Oregon "Nuremberg Files" case.
1.9.2006 3:31pm
Dr. Weevil (mail) (www):
It's a minor point, but I can't help being pedantic (I'm a Latin teacher):

When you wrote "Those Awful Somdomites Derangement Syndrome", you misspelled 'Sodomite' the same way the Marquess of Queensberry did when he left his card at Oscar Wilde's club inscribed "To Oscar Wilde, posing as a somdomite", an act that led to not one but three trials. (Wilde sued Q. for libel twice, with the first a hung jury and the second a loss for Wilde. The evidence Q. offered that his imputation was true was enough to put Wilde on trial for gross indecency.) So is your idiosyncratic spelling a coincidence or an obscure legal-literary allusion?
1.9.2006 3:32pm
Mr Diablo:
Medis, good point. Damnit, I'm really going to miss the Sandra Day Decision drinking-game we always imagined in law school but never played. Perhaps it will become the Kennedy game instead.

Yes, we were nerds of the Alito-variety.
1.9.2006 3:35pm
JosephSlater (mail):
Clayton wrote:

Sad to say, the longer Supreme Court Justices sit up there, the farther left they seem to get. Justice O'Connor is a good example. Do you suppose that anyone would have guessed, in 1981, that she would be the vote that struck down Texas's homosexual sodomy law?

By the way, I'm being charitable in assuming that the problem is "not enough time to check for accuracy." Realistically, judges figure out the result that they want, then send their clerks out to find the justifying precedents and arguments.

---
Assuming arguendo that you are right about all that, your argument proves far too much, as that level of widespread and thorough-going judicial misconduct goes far beyond anything the ACLU could sanely be held accountable for. But your willingness to blame them for it does illustrate E.V.'s original point nicely.
1.9.2006 3:37pm
Medis:
Just an offhand observation, but I notice that all the ACLU's "anti-religion" cases seem to involve the government in some way.

But I'm sure that is just a coincidence.
1.9.2006 3:37pm
Clayton E. Cramer (mail) (www):

Really? Can you show me where in the Federalist Papers Hamilton, Madison, and Jay argue against the use of Photoshop? Can you give me a specific cite where Jefferson and Frankin opposed the use of age regression software?
Try taking a look at the state of the law regarding licentious literature at the time, and you tell me if you think that even Hustler (perhaps in woodcuts) would not have immediately landed the publisher in prison in 1789.


Seriously, there's is nothing "lunatical" about the arguement that the posession of digitally-generated sexually explicit images of minors (which do not depict actual persons) is not inherently illegal.
Inherently illegal? No, that's why Congress passed a law to prohibit it. They made it illegal because:

1. The presence of such materials may encourage those with a prediliction towards molesting children to do so, or to take obscene pictures. If you can't tell that it is digital retouched, then, at least from the standpoint of making a pedophile feel "normal," it might as well be real.

2. Pedophiles use child pornography as a tool for persuading children to get undressed, or to have sex with adults. "See? Other kids do this." I've blogged a few news items over the years in which that has been exactly the mechanism used by pedophiles.


I respectfully respect your right to call such "virtual" images repulsive and perverted (and in fact, I would generally agree with that assertion), but I also like the idea that there is an organization out there willing to fight for someone's legal right to dissagree.
The law in question didn't punish anyone for disagreeing with this. It punished them for making child pornography, even if the "child" was the result of clever image manipulation.
1.9.2006 3:37pm
Mr Diablo:
As a Red Sox fan, I'm partial to thinking that New York Yankees fans are practising a particular brand of fundamentalist paganism, but that isn't the case.

Duncan, Let's not pretend that everyone who disagrees with you is unable to knock down a straw man. And, I am dying to see that cite to the alleged case about bans on private prayers offered by cadets. Link me, seriously. Is it on the same web-page that said that a Texas high school was banning students from wearing red and green during the month of December?
1.9.2006 3:39pm
Decius (www):
The ACLU's detractors suffer from three basic logical fallacies:

1. They can't separate the legal questions from their personal opinions about the defendants.

Miguel Andres says examples of the ACLU defending Christians are the exceptions that prove the rule. He is absolutely right. Its just that he doesn't know which rule he is proving.

In a majoritarian republic, obviously the civil liberties of mainstream, popular groups aren't going to be frequently threatened by authority figures. Christians are rarely censored by the state for private speech, and so they are rarely candidates for ACLU defense. Obviously, the people whose cases do raise interesting questions about freedom of speech and due process are frequently going to be unpopular people who might even be engaged in questionable activity. Those are the kinds of people whose rights are infringed by the state. Its not about whether you like the KKK or NABLA or Padilla, I doubt very seriously that the ACLU lawyers who have defended them are big fans, its about whether you like the first amendment and due process, and whether you have the intelligence to recognize that those things don't go away just because you hate the defendant.

2. They don't understand the difference between private speech and tax payer funded speech.

The ACLU has drawn a very clear line in the sand about where they think the establishment clause begins and ends, and they have litigated that line. Is this the right place to draw the line? Maybe not. However, the other side doesn't want a line at all. They'd like nothing more then a return to the pre-civil war days of state level bans on Catholics holding public office, etc... Because they aren't willing to make a counter arguement, they have to twist a rule which prevents them from spending my tax money on the practice of their religion into a limit on their personal freedom of speech, and they have to repeatedly accuse the ACLU of not having a line either, despite the fact that their case history shows that they do have one.

Can I spend your tax money on public satanic rituals? What if most of the people in my local community are satanists? If not, then where should the line be with respect to the establishment clause? These kinds of questions aren't raised because the ACLU's detractors aren't interested in a fair legal playing field. They are interested in dominance for their creed.

3. So far to the right they don't know where the center is.

If you think abortion is clearly murder and reasonable people cannot disagree about that then you must accept that the vast majority of the people in the United States are unreasonable. Most people in this country do not subscribe to the view that abortion should be illegal in all circumstances. In that light, SURE the ALCU looks like a mouth breathing radical organization, but so does everything to the left of Bill Frist including a significant percentage of the Republican party. You know what they say when you're the only one whose not crazy?
1.9.2006 3:40pm
Clayton E. Cramer (mail) (www):

Assuming arguendo that you are right about all that, your argument proves far too much, as that level of widespread and thorough-going judicial misconduct goes far beyond anything the ACLU could sanely be held accountable for.
How about if their briefs make those arguments?
1.9.2006 3:40pm
Joel B. (mail):
Medis-

With respect to Derangement Syndromes, it appears we agree.
1.9.2006 3:42pm
Duncan Frissell (mail):
Whether imprisonment is for a "crime" or for violation of a federal court order, the jail is the same save that most crimes have a definite sentence while imprisonment for contempt of court is indefinite.

Federal court orders are not magic. They can't convert an illegal restraint on the natural liberties of the American people into a legal restraint. They remain a judge's opinion and we remain free to ignore them.

Any imprisonment for prayer remains an imprisonment for prayer and an example of official suppression of (non-dangerous) religious practice which is what was called for by Eugene's original question.
1.9.2006 3:44pm
Clayton E. Cramer (mail) (www):

The ACLU has drawn a very clear line in the sand about where they think the establishment clause begins and ends, and they have litigated that line. Is this the right place to draw the line? Maybe not. However, the other side doesn't want a line at all. They'd like nothing more then a return to the pre-civil war days of state level bans on Catholics holding public office, etc...
Oddly enough, the early Republic bans on Catholics (in a few states) and Jews (in a few states) went away not because of litigation, but because the majority changed its mind.

Can you point me to anyone who wants a ban on Catholics or Jews holding public office? Even one person?

Because they aren't willing to make a counter arguement, they have to twist a rule which prevents them from spending my tax money on the practice of their religion into a limit on their personal freedom of speech, and they have to repeatedly accuse the ACLU of not having a line either, despite the fact that their case history shows that they do have one.
It is one that has no historical basis. It is one that the ACLU made up by playing telephone--and relying on precedents that the ACLU would find abhorrent today.
1.9.2006 3:45pm
Noah Klein (mail):
Clayton:

First, as to the idea that ACLU is a group of such power and weight that it can pressure the Supreme Court to uphold actions and approve of arguments that are "inccrrect," this is a silly argument. It is you who believe they are incorrect not the court. The ACLU is like any other group petitioning the court. Its arguments are made, questioned and then the court makes its judgement.

Second, as to your belief that the history of this country demonstrates that the Supreme Court is wrong in its position on the establishment clause, I believe that you are also incorrect here. The history of the U.S. is one of the government giving aid to religious schools and taking other actions that would no longer be considered constitutional. The history of the U.S. also has other instances of our government endorsing or specifically encouraging activities that we now consider to be unconstitutional, such as slavery, Jim crow, and privacy, the importance of warrants, the requirement of a lawyer for the indigent. I have always considered these rulings by the court as the ultimate fulfilment of the constitution and so I feel with the court's action in the past 40 years. The Court recognized that the government was establishing religion with the laws that it made and corrected that. That does not mean we should go to far in the other direction, but that because it was done in the past in no defense for unconstitutional actions.

NOah
1.9.2006 3:46pm
JosephSlater (mail):
Clayton, you're trying to switch subjects. I wrote:

Assuming arguendo that you are right about all that, your argument proves far too much, as that level of widespread and thorough-going judicial misconduct goes far beyond anything the ACLU could sanely be held accountable for.

You replied: How about if their briefs make those arguments?

But you omitted what we were talking about, which was YOUR argument thats: (1) "the longer Supreme Court Justices sit up there, the farther left they seem to get...."; and (2) "Realistically, judges figure out the result that they want, then send their clerks out to find the justifying precedents and arguments."

----
The ACLU is not arguing in their briefs that Washington pressure does or should make judges leftists, or that judges do or should should pre-determine results and then send their clerks out to find justifying precedents. You are arguing that. And I am simply saying that if you are right, then the problem is much broader than just the ACLU.
1.9.2006 3:47pm
Mr Diablo:
Duncan,

If the federal court order is upheld or denied cert., then it's pretty damn legal with regard to the parties to the case. In fact, I'd argue that this was kind of the basis of legality as we know it. In my practice, if a court says "you violated this patent, pay XX" and that is affirmed or not appealed or whatever, then you have violated that patent and you must pay XX.

And no one here is going to go to prison for contempt anyway, fined maybe for violating an order, but not prison. Easy, fella.

I really love the reflexive property you've employed in your last paragraph, "any imprisonment for prayer remains an imprisonment for prayer." I'm just going to justify all of my arguments by announcing that 1 = 1 and therefore I'm right. Talk about suppression.
1.9.2006 3:52pm
Aaron:
CEC:
"I didn't forget at all. It is a reminder of the enormous power that the ACLU has with the federal bench, even when they are wrong on historical grounds and public policy grounds."

Translation: Clayton Cramer disagrees with the ACLU on these issues.
1.9.2006 3:58pm
frankcross (mail):
Clayton Cramer, when you ridicule the Supreme Court as lunatic fringe or the judiciary more generally as clearly incorrect, I think you are pretty much burning away any credibility you might have. At least you don't suffer from an excess of modesty or respectfulness.

And when you suggest that a decision is wrong because only ten percent of the American people would agree with the legal holding, I'm afraid I am utterly lost by your logic.
1.9.2006 3:59pm
Kurt:

But because judges so often accept the ACLU's arguments--no matter how clearly incorrect



Tranlation: Clayton Cramer disagrees with the ACLU on those issues.
1.9.2006 3:59pm
Clayton E. Cramer (mail) (www):
Decius writes:


Can I spend your tax money on public satanic rituals? What if most of the people in my local community are satanists? If not, then where should the line be with respect to the establishment clause? These kinds of questions aren't raised because the ACLU's detractors aren't interested in a fair legal playing field. They are interested in dominance for their creed.
Interesting hypotheticals, but there were situations pretty close to this in the San Francisco Bay Area a few years back, where pagan religious symbols ("peace poles") were put up at one of the local public schools. A lot of Christians weren't happy about it, but hey, it's the Bay Area. Christians are the minority.

There are Wiccan chaplains in the U.S. military. This should tell you who the tolerant ones are in this society.


Most people in this country do not subscribe to the view that abortion should be illegal in all circumstances.
Most people in this country also don't subscribe to the view that it should be legal to pull a nine month fetus part way, stick scissors into its skull, and then suck the brains out. But that's the ACLU's position--that this should be lawful, and they've gone to court repeatedly to protect something that is only a few inches short of infanticide.

But here's the difference: the ACLU trusts the people so little that it has demanded that the courts take the right of the voters to determine what level of regulation is appropriate--and by so doing, poisoned the discussion. Even pro-choicers like Ginsburg acknowledge that Roe v. Wade ended what was beginning to be a state-by-state liberalization of abortion laws.

At the same time that the ACLU is defending even the most absurd examples (partial-birth abortion) of a right that is only implied in the Constitution--it refuses to challenge even the most absurd laws that directly contradict an explicit Constitutional provision.
1.9.2006 4:01pm
Clayton E. Cramer (mail) (www):

Second, as to your belief that the history of this country demonstrates that the Supreme Court is wrong in its position on the establishment clause, I believe that you are also incorrect here. The history of the U.S. is one of the government giving aid to religious schools and taking other actions that would no longer be considered constitutional. The history of the U.S. also has other instances of our government endorsing or specifically encouraging activities that we now consider to be unconstitutional, such as slavery, Jim crow, and privacy, the importance of warrants, the requirement of a lawyer for the indigent. I have always considered these rulings by the court as the ultimate fulfilment of the constitution and so I feel with the court's action in the past 40 years.
Slavery was Constitutional--and we passed an amendment to make it unlawful. The courts didn't just reach into a bag and say, "Ah, slavery is unconstitutional because there's an implied right to be able to quit hidden under the freedom to travel."

Jim Crow was also unconstitutional--and there was a specific amendment that prohibited it, also. Unfortunately, the best lawyers worked for the segregationists for many years, and it showed.

If you want to argue that the ACLU has made the Constitution what it was all along--please show me some evidence that the Framers intended child pornography to be legal.

If this is just, "I like the results of what the ACLU accomplishes," that's not the same thing.
1.9.2006 4:07pm
Jim Christiansen (mail):
The ACLU has campaigned to force Catholic hospitals to perform abortions in violation of the teachings of the Church. Even strong supporters of abortion would, I think, grant that a woman's right to abortion does not entail the right to compel a doctor to perform it. The ACLU's opposite position shows its unusual view of civil liberties. Granted, in constitutional terms this is a free-exercise rather than a free-speech question, but I think the point sheds light on the ACLU's constricted view of religious liberty.

Mr. Cramer's satire was broad, even Coulteresque, but he characterizes the ACLU more accurately than does Professor Volokh. The latter atypically relies on name-calling — which is all that "ACLU Derangement Syndrome" is.
1.9.2006 4:11pm
Clayton E. Cramer (mail) (www):

Clayton Cramer, when you ridicule the Supreme Court as lunatic fringe or the judiciary more generally as clearly incorrect, I think you are pretty much burning away any credibility you might have. At least you don't suffer from an excess of modesty or respectfulness.
So you are arguing that finding virtual child pornography is Constitutionally protected isn't "lunatic fringe"?


And when you suggest that a decision is wrong because only ten percent of the American people would agree with the legal holding, I'm afraid I am utterly lost by your logic.
Except that I didn't say that. I said that it was wrong because the historical evidence shows that obscenity was never understood to have been protected by the First Amendment. The ACLU's belief that freedom of the press and freedom of speech implied that one could not be punished for what you wrote or said is simply fantasy. Freedom of the press and freedom of speech were guarantees against prior restraint. Libel, slander, obscenity, incitement to riot, certain speeches in wartime--all of them are forms of speech, and yet all of them would qualify as criminal matters to the Framers. (We still have criminal libel laws in about half the states, and some of them are being misused as I write this.)
1.9.2006 4:12pm
Bob Bobstein (mail):
First off, Clayton Cramer, hats off to you for hanging around this long in a thread dedicated to calling you out as an anti-ACLU zealot.

You write: defending even the most absurd examples (partial-birth abortion)

*sigh*. Look, as far as policy goes, the bulk of such abortions are done to protect the life or health of the mother. Plus, even if my factual assertion were wrong, the Supreme Court has sided with those who have argued that states that want to restrict such abortions must provide an exception for the life or health of the mother. You are free to disagree, but you come across as... not wanting for self-confidence when you argue that that view is legally "absurd."

it refuses to challenge even the most absurd laws that directly contradict an explicit Constitutional provision.

Is that what this is about? That they don't engage in Second Amendment activism?

Also, a big point made by others, the ACLU is not a monolith. Demonizing an organization dedicated to fighting for unpopular rights enshrined in the Constitution and elsewhere as "Big ACLU" is unconvincing for this and other reasons.
1.9.2006 4:13pm
Mr Diablo:
Clayton, can you show me that the framers intended to allow rapid-fire weaponry to be owned by every citizen, at-will, even though such a devise was unimaginable at the time?

Can we please stop with this whole "my constitutional interpretation is more originialist than yours" and "my founding father could beat up your founding father" pissing match?

I do love the "the best lawyers worked for the segregationists" argument, how it strips away responsibility for the conditions of Jim Crow from any authority--the courts, the executive, the legislature... and also strips away the winning of the battle against Jim Crow that came from as many lawsuits as it did from laws. (That amendment banned poll taxes, not segregation.) It's sort of a "Mississippi Burning" for constitutional law; the FBI agents were the heroes, when they were not busy spying on Dr. King.
1.9.2006 4:14pm
Clayton E. Cramer (mail) (www):

And I am simply saying that if you are right, then the problem is much broader than just the ACLU.
Probably. Those of you who are law school students right now, do a little survey. Ask 20 of your classmates if virtual child pornography is constitutionally protected, and if there is a right of adults to have sex with children. I'm sure that 80% or more will give the ACLU's position.

Then go outside your law school. Walk down the streets, and ask people passing by their opinion on these two items. If you get to 50 without one of them threatening you--or perhaps actually striking you--let me know.
1.9.2006 4:16pm
Decius (www):

Oddly enough, the early Republic bans on Catholics (in a few states) and Jews (in a few states) went away not because of litigation, but because the majority changed its mind.

Can you point me to anyone who wants a ban on Catholics or Jews holding public office? Even one person?

The ban in South Carolina is frequently referenced by originalists as evidence that this was once a "Christian Nation." But, no I don't think that such a position is taken in seriousness by the Conservative Protestants, if for no other reason then that they've found embracing Catholics and Jews to their political advantage on shared interests. However, much like the legal issues surroundling NAMBLA, its not the example thats important but the Constituional questions. I don't think a ban on Catholics holding public office is Constituional. Do the originalists? Your reference to the democratic process that led to the change leads me to think that you do. I'd prefer to live in a society that protects fundamental freedoms from the excesses of majority.

With respect to the evolved understanding of establishment versus its interpretation 200 years ago, you answered my challenge by avoiding the central question. The establishment clause obviously means something. Where should the line be drawn? What is the difference between having an official church and having an unofficial church with all the same trappings? Is a Prime Minister not an executive in spite of the fact that he isn't officially recognized as one? How many trappings constitute an official church? Where should the line be drawn? I think orginalists choose to interpret the Constitution that way because it is the most conducive to their goals, rather then because it is the most rational way to think about the Constitution from an objective standpoint. This is the oldest system of government in the world. I think its important to understand why laws were written in the first place, and on many issues that purpose is the only one that matters. However, if we all agreed to read the Constitution the way Thomas does we'd write a new one the very next day, because it wouldn't mean what we think it means and it wouldn't reflect who we are today as a society.
1.9.2006 4:17pm
Clayton E. Cramer (mail) (www):

Translation: Clayton Cramer disagrees with the ACLU on these issues.
Fortunately, I am confident that 90%+ of the American people agree with me. But I keep forgetting: this nation isn't a representative government, where the will of the people makes decisions. It one where the lawyers decide what the people are supposed to think.
1.9.2006 4:18pm
Andy (mail) (www):

Try taking a look at the state of the law regarding licentious literature at the time, and you tell me if you think that even Hustler (perhaps in woodcuts) would not have immediately landed the publisher in prison in 1789.


Ahh, so that's your argument: the Constitution is an unchangable document (except by Amendment) and whatever was constitutionally unprotected in 1789 (and thus illegal) must remain constitutionally unprotected today. And if the mores of society change over time, that is irrelevant to your doctrine of constitutional interpretation, as the 1789 rules must still prevail. And anyone who legally argues otherwise (including what is now almost a century of evolving Supreme Court precedents) is an extremist?


1. The presence of such materials may encourage those with a prediliction towards molesting children to do so, or to take obscene pictures. If you can't tell that it is digital retouched, then, at least from the standpoint of making a pedophile feel "normal," it might as well be real.


"May encourage"... so in other words, the fact that some people think it could be so makes it a truism. I can't help but think of a saying popular among netizens: the plural of anecdote is not data.


2. Pedophiles use child pornography as a tool for persuading children to get undressed, or to have sex with adults. "See? Other kids do this." I've blogged a few news items over the years in which that has been exactly the mechanism used by pedophiles.


As you know, showing child pornography to a minor is against the law. And I would agree with your argument that showing "virtual" child pornography to a minor should also be against the law. (And I suspect that the ACLU would also agree with those assessments.) But the question of reference is should mere possession (or creation without distribution) of "virtual" child porn (with no actual minors involved) be against the law, and this argument above doesn't seem to be on point to that question.


The law in question didn't punish anyone for disagreeing with this. It punished them for making child pornography, even if the "child" was the result of clever image manipulation.


And yet several of the arguments made by other posters criticize the ACLU for defending NAMBLA's right to disagree. (Remember: the ACLU does not defend NAMBLA's actions, only its speech.) Would you then agree that the ACLU is correct in this position, or if not, where do you draw the line between legally defensible speech and action? (And would that have anything to do with how that line was drawn in 1789?)
1.9.2006 4:20pm
Public_Defender:
So, if the ACLU loses, it's because they argue frivolous cases. If they win, it's a sign of some unseemly, unstoppable power. No evidence of ACLU DS there.

It's also funny that you cite the virtual porn case, where the ACLU got the vote of that radical lefty Clarence Thomas.
1.9.2006 4:21pm
JosephSlater (mail):
Clayton writes: Those of you who are law school students right now, do a little survey. Ask 20 of your classmates if virtual child pornography is constitutionally protected, and if there is a right of adults to have sex with children. I'm sure that 80% or more will give the ACLU's position.

Then go outside your law school. Walk down the streets, and ask people passing by their opinion on these two items. If you get to 50 without one of them threatening you--or perhaps actually striking you--let me know.

---
Again, assuming arguendo what you say is true, you think any of that is relevant to constitutional interpretation why, exactly? We should decide con law cases by having votes of the populace, or more precisely votes of the populace that exclude at least some parts of the legal profession? Or is it that con law should be determined by what some combination of a vote and what you think you can prove in 20 minutes that a majority of Supreme Court judges can't find?

Beyond that, your bizarre beliefs about the extent of the influence of the ACLU continue to prove E.V.'s original point better than any dispassionate analysis could.
1.9.2006 4:25pm
Clayton E. Cramer (mail) (www):

Look, as far as policy goes, the bulk of such abortions are done to protect the life or health of the mother.
Hmmmm. I saw that claim made some years ago on television. A few years later, the doctor who made the claim admitted that it was not just wrong, but that he lied when that claim.

Plus, even if my factual assertion were wrong, the Supreme Court has sided with those who have argued that states that want to restrict such abortions must provide an exception for the life or health of the mother. You are free to disagree, but you come across as... not wanting for self-confidence when you argue that that view is legally "absurd."
Try again. The problem was that the exception that the ACLU wants provides for any health concerns, not just serious health concerns, or long-term health concerns. What they want is an exception so loose as to make it meaningless.


Is that what this is about? That they don't engage in Second Amendment activism?
No, it is about the ACLU having forgotten that ACLU stands for "American Civil Liberties Union." There are some specific rights guaranteed to us as individuals, and once upon a time, the ACLU devoted its considerable energies and abilities to defending those liberties. Sometimes, such as the Skokie March, they defended an unpopular group who had been wronged: they had been denied the right to use a public park in Chicago for their stupid neo-Nazi rally.

Unfortunately, ACLU lost something like one-third of their membership because they defended the Constitution--even for a bunch of idiots with swastikas. Shortly thereafter, they became just another leftist pressure group with a glorious past.

I could understand if ACLU chose to focus on only one set of civil liberties. But instead, they now focus on items for which there is no historical basis in calling them "civil liberties."
1.9.2006 4:26pm
Clayton E. Cramer (mail) (www):

Ahh, so that's your argument: the Constitution is an unchangable document (except by Amendment) and whatever was constitutionally unprotected in 1789 (and thus illegal) must remain constitutionally unprotected today.
Yup. This doesn't mean that laws can't change. The voters of Maryland decided in 1809 that "religious Jews" could be trusted to hold public office, and amended their laws accordingly. The voters (at least, in those states that elected to stay in the Union) in 1866 decided to abolish slavery--once and for all. They did so. Again, popular sovereignty.

And if the mores of society change over time, that is irrelevant to your doctrine of constitutional interpretation, as the 1789 rules must still prevail. And anyone who legally argues otherwise (including what is now almost a century of evolving Supreme Court precedents) is an extremist?
Except that I am not arguing that. If the mores of society change over time, then the people, through their elected representatives, or in some states, through the initiative process, change the laws accordingly.

The ACLU's actions are by definition anti-democratic. It is precisely because the "mores of the people" have NOT changed that Lawrence v. Texas (2003) struck down the Texas homosexual sodomy law.
1.9.2006 4:30pm
Kurt:

Fortunately, I am confident that 90%+ of the American people agree with me. But I keep forgetting: this nation isn't a representative government, where the will of the people makes decisions. It one where the lawyers decide what the people are supposed to think.


Fortunately, I have a tinfoil hat so those lawyers and judges can't get to me. Nobody tells ME what to think.
1.9.2006 4:30pm
Clayton E. Cramer (mail) (www):

The ban in South Carolina is frequently referenced by originalists as evidence that this was once a "Christian Nation."
Not just South Carolina. See some of the examples here.


But, no I don't think that such a position is taken in seriousness by the Conservative Protestants, if for no other reason then that they've found embracing Catholics and Jews to their political advantage on shared interests.
The only person that I've ever heard suggest that voting should be restricted based on religion is Garrison Keilor, arguing that Christians shouldn't be allowed to vote in the U.S. (This was after the 2004 election, and he was in a bad mood.)

However, much like the legal issues surroundling NAMBLA, its not the example thats important but the Constituional questions. I don't think a ban on Catholics holding public office is Constituional. Do the originalists?
A federal ban would be clearly contrary to the Constitution; there's a specific provision that prohibits religious tests as a condition of holding federal office. With respect to state offices, some states still have religious tests (of a sort) written into their constitution, such as Pennsylvania. Has anyone challenged it? I would argue that it is constitutional.

Your reference to the democratic process that led to the change leads me to think that you do. I'd prefer to live in a society that protects fundamental freedoms from the excesses of majority.
I would prefer this as well. The ACLU's fanaticism, however, is eroding support for the idea of a Constitutionally-limited republic.
1.9.2006 4:35pm
uh clem (mail):
Thank you Mr. Cramer. You have been most entertaining.

And thank you, Mr. Volokh. You couldn't have come up with a more compelling 'exibit A' if you hired him from central casting.
1.9.2006 4:35pm
Clayton E. Cramer (mail) (www):

I do love the "the best lawyers worked for the segregationists" argument, how it strips away responsibility for the conditions of Jim Crow from any authority--the courts, the executive, the legislature... and also strips away the winning of the battle against Jim Crow that came from as many lawsuits as it did from laws. (That amendment banned poll taxes, not segregation.)
Go read how the Supreme Court dealt with the "grandfather clause" voting restrictions. You have to admire the evil genius of whoever came up with these laws that did not directly discriminate based on race--but had the same net effect.

I will agree that there were a lot of other players in this. Certainly, intellectuals of the Progressive period (1900-16) played a big part in promoting the ideas that made segregation acceptable. Voters (especially once black voters could no longer vote in Democratic primaries in the South, and often not in general elections) have plenty to be responsible for as well.

I would prefer a Constitutionally-limited republic. But the ACLU's fanaticism in twisting the Constitution for their political causes makes that an increasingly discredited idea.
1.9.2006 4:40pm
Decius (www):
With respect to partial birth abortion bans, they are a fairly transparent political football. The critical issue is, of course, the health of the mother. Republican law makers could craft a ban that handled that issue in a Constitutional manner in an instant if they had any interest in doing so. They don't. The legislation they craft is specifically designed to be overturned so that they can do exactly what you just did, call the liberal lawyers a bunch of monsters, in hopes of getting their constituency out to the polls.
1.9.2006 4:40pm
Clayton E. Cramer (mail) (www):

With respect to the evolved understanding of establishment versus its interpretation 200 years ago, you answered my challenge by avoiding the central question. The establishment clause obviously means something. Where should the line be drawn? What is the difference between having an official church and having an unofficial church with all the same trappings? ... How many trappings constitute an official church? Where should the line be drawn? I think orginalists choose to interpret the Constitution that way because it is the most conducive to their goals, rather then because it is the most rational way to think about the Constitution from an objective standpoint.
Take a look at the actions taken by the First Congress, and for that matter, by the Patron Founding Saint of "separation of church and state," Thomas Jefferson.

Things that constitute an establishment of religion:

1. Tax funding of one denomination to the exclusion of others. (Perhaps even disproportionate funding.)

2. Giving preferred legal status to one denomination over others. (Clearly, giving all religious organizatons similar legal status as a non-profit, isn't a problem.)

3. Requiring you to be a member of a particular denomination to vote or hold office.

Things that aren't establishment of religion:

1. Allowing government buildings to be used to promote or assist religious organizations, as long as every group has an equal opportunity.

2. Oddly enough, requiring one to subscribe to certain religious beliefs to hold office probably isn't "establishment of religion" (although I wouldn't support such a law myself). I say that based on both the Pennsylvania Constitution's requirement that officeholders take an oath believing in "one God," and this interesting provision of the New Jersey Constitution of 1776:

XIX. That there shall be no establishment of any one religious sect in this Province, in preference to another; and that no Protestant inhabitant of this Colony shall be denied the enjoyment of any civil right, merely on account of his religious principles; but that all persons, professing a belief in the faith of any Protestant sect. who shall demean themselves peaceably under the government, as hereby established, shall be capable of being elected into any office of profit or trust, or being a member of either branch of the Legislature, and shall fully and freely enjoy every privilege and immunity, enjoyed by others their fellow subjects.
Pretty clearly, the notion of "establishment of religion" did not extend to requiring you to profess "the faith of any Protestant sect."
1.9.2006 4:48pm
Clayton E. Cramer (mail) (www):

As you know, showing child pornography to a minor is against the law. And I would agree with your argument that showing "virtual" child pornography to a minor should also be against the law. (And I suspect that the ACLU would also agree with those assessments.)
I wouldn't suspect this. Remember, in Limon they argued that minors have a "due process liberty interest" in being able to have sex with adults. That's a bit more serious than the right to see child pornography.
1.9.2006 4:51pm
Deoxy (mail):
"The ACLU consistently supports individual religious liberty as well as anti establishment cases."

Right. Like when they sued to keep a little girl from reading the Bible, SILENTLY, TO HERSELF, on the school-bus. Yeah, just like that.

I have managed to refrain from any personal insults, but I believe I can say that such a belief shows you be quite naive.

The ACLU supports SOME rights... the rights they choose to, primarily "speech" (which has, over the years, been expanded to include all kinds of amazing things) and "the right not to get as punished as the law law says you should, especially death". But they are, generally, very much anti-religion, particularly anti-Christian, as the record well bears out.

Some of the more egregious cases may well be local chapters. And the well-known cases may well be in the minority. Taking both of those as true, I STILL stand by my statement about them. Such extreme cases, even if few, are more than enough.

Some good does indeed come from the ACLU - but it is rare, and, on balance, not at all worth it.

One thing that would make people like myself (and probably Clayton) less agitated at them was if they were at least HONEST about their stance (many such groups exist). They claim to be neutral and aren't.

I dislike advocacy groups that are advocating things I strongly disagree with, but I recognize their right to incorparate and advocate things. What really gets my fire up is a group that claims to be advocating my rights when they are, in fact, advocating directly AGAINST my rights.
1.9.2006 4:54pm
KMAJ (mail):
This is an interesting discussion that seems to be narrowly focused on legal applications and interpretations. I offer up a thought that we may, in keeping our focus so narrow, be missing the forest for the trees or trees for the forest, if one will. Should we not also examine philosophical and sociological constructs within the argument to acquire a broader more inclusive picture ?

We all, in general, accept the premise that we are governed by 'the rule of law'. I proffer that the rule of law is not universal, but societal in nature, subject to the mores and folkways of a particular society. To whit, one would no more seek to impose Christian beliefs on an Islamic society than vice versa, though it seems the secularist viewpoint hopes for universal application. Being a non-Christian, my approach tends to be more philosophical than religiously oriented.

Strictly opinion here, but do we not venture down a dangerous path when we allow the rights of the minority in a society to be imposed to the detriment or restriction of the majority ? It seems we are trying to legislate and adjudicate an intangible right, the right to not be offended by the majority, when we interpret the Establishment Clause to support the inflexible ACLU position. Do we not engage in convenient revisionism when we try to equate the Establishment Clause with a impregnable wall of Separation of Church and State ? I will not bother with citing historical quotes of the Founders, as there are many that can be cited for both sides of the debate. It is an interesting aside that one of the first publications that the federal government authorized for dispersal, after the approval of the Constitution, was that of printing the Bible to be distributed to the public schools, that would seem to be a direct refutation of any impregnable wall interpretation.

I personally believe that the Establishment Clause was created to prevent the creation of a Church of England in this country, not to bar Christianity from the public square or from working in conjunction with the government in the social arena, as strict Separation of Church and State advocates seem to imply and as created by Everson. I think it is within these parameters that there is reality to be attributed to the often cited 'Culture War'.

We err when we do not take into account that societies are not a constant, but exist in a perpetual state of flux that lends itself to a pendulum theory as opposed to a straight line theory of evolution. Straightline theory lends itself to absolutist points of view, that once change has occurred, it should not revert back and any such reversion or swing of the pendulum is necessarily wrong. It refuses to acknowledge that the majority in a society can decide they do not like where changes may be taking us and alter course.

It is within the narrow paradigm of change that much of the debate ensues, where minority concerns seek to dictate to the majority and the vocal minority can sometimes prevail. Human nature lends itself to a theory that the majority is a silent compendium that, in general, allows itself to be carried along until change goes to far. It is in that moment that the societal pendulum starts to swing back in the other direction.

I advance the theory that we are now in that stage where the pendulum is swinging in an opposite direction from the ACLU and its positions of advocacy. The impact on this society and its 'rule of law' will be fought vigorously by those who championed the causes supported when the pendulum was swinging the other direction. It is human nature to fight change that goes against what we believe and support change that tends to support our beliefs. This is not a declaration of the right or wrong of any individual belief, but an opinion that we are engaging in a societally induced correction, that could be analogous to the economic principle of a 'market correction'.
1.9.2006 4:56pm
Clayton E. Cramer (mail) (www):
Mr. Diablo writes:


Clayton, can you show me that the framers intended to allow rapid-fire weaponry to be owned by every citizen, at-will, even though such a devise was unimaginable at the time?
First machine gun patent: 1709. It was called the Puckle gun, and it as a strong similarity to the Gatling gun.

Magazine-fed repeating muskets were issued on an experimental basis in the mid-17th century.

By the time of the Revolution, four and six shot "pepperbox" handguns are in use.

I know for a fact that there's no problem with hand grenades, because I have found 1780s advertisements offering them for sale, and a 1786 Boston fire safety ordinance prohibits leaving unattended any "fire-arms, or any bomb, granade, or other shell… in any house, outhouse, barn, stable, store, ware-house, shop, or other building…."
1.9.2006 4:57pm
Mr Diablo:
Deoxy, you said:

One thing that would make people like myself (and probably Clayton) less agitated at them was if they were at least HONEST about their stance (many such groups exist). They claim to be neutral and aren't.

....a lot of us on here would say the same for those who claim to stand for "originalism."

Where has the ACLU (and not some rinky-dink chapter, let's go with the guys at the top) directly advocated against your personal, private rights?
1.9.2006 5:01pm
Clayton E. Cramer (mail) (www):

I personally believe that the Establishment Clause was created to prevent the creation of a Church of England in this country, not to bar Christianity from the public square or from working in conjunction with the government in the social arena, as strict Separation of Church and State advocates seem to imply and as created by Everson. I think it is within these parameters that there is reality to be attributed to the often cited 'Culture War'.
Exactly--although the objective of the establishment clause originally was only to prevent this as the federal level, since most states still had an establishment of religion.

The establishment of religion approach was falling into disfavor by the time our Constitution is being written, and by the 1830s, the last of the state establishments (Massachusetts) is gone. The goal at the federal level was to prevent what would have been an incredibly divisive struggle for power--analogous to fears that the Americans had just before the Revolution, when there was fear that the British government might establish the Anglican Church throughout the American colonies.
1.9.2006 5:04pm
Jon Rowe (mail) (www):
-- Slavery was Constitutional--and we passed an amendment to make it unlawful. --

How can an originalist be on the moral highground when interpreting the Constitution of 1789 if that document is pro-slavery?

What about the civil war? If slavery was constitutional before the 13th Amendment, how was Lincoln justified, on constitutional grounds, in doing what he did?
1.9.2006 5:06pm
Mr Diablo:
Clayton, I'm still not drinking the Kool-Aid to award the Second Amendment the Prophecy-like status that you suggest it deserves (interesting how that works out for conservatives -- the Ninth Amendment is nonjusticiable and would lead to chaos, but the Second Amendment, it's non-negotiable).

I do, however, want to find out how many people survived their encounter with a magazine-fed musket--shooter or shootee.
1.9.2006 5:07pm
Clayton E. Cramer (mail) (www):

With respect to partial birth abortion bans, they are a fairly transparent political football. The critical issue is, of course, the health of the mother. Republican law makers could craft a ban that handled that issue in a Constitutional manner in an instant if they had any interest in doing so. They don't. The legislation they craft is specifically designed to be overturned so that they can do exactly what you just did, call the liberal lawyers a bunch of monsters, in hopes of getting their constituency out to the polls.
Show me the text of a state law that would prohibit elective third trimester abortions that the ACLU would not challenge, please.

Oh, and please give me some examples of third trimester abortions required for the life or health of the mother. A partial-birth abortion involves much of the trauma of childbirth because the baby is already part way out. With current technology, the vast majority of third trimester pregnancies should result in a C-section and a baby in the premature birth unit. Some will die, unfortunately, but many, probably most, will live; partial-birth abortion guarantees it.
1.9.2006 5:10pm
uh clem (mail):
Deoxy: "Like when they sued to keep a little girl from reading the Bible, SILENTLY, TO HERSELF, on the school-bus. Yeah, just like that. "

Urban legend. Or do you have a cite to back it up?
1.9.2006 5:13pm
Mr Diablo:
Can we conduct another Clayton-sample (not to be confused with a scientific survey) on this topic of the Establishment Clause?

Go out and ask 100 law students at Pepperdine if they think that the constitution should protect official state religions... and then ask the question of 100 Californians what they think the Constitution should permit... (I don't know, we'll go with the majority religion of Californians)... Wishy-Washy-atheo-neo-hippie-Catholicism, as the State's official faith?

If they don't like it, they can just move, right, everyone?
1.9.2006 5:14pm
Clayton E. Cramer (mail) (www):

And yet several of the arguments made by other posters criticize the ACLU for defending NAMBLA's right to disagree. (Remember: the ACLU does not defend NAMBLA's actions, only its speech.)
Actually, it isn't that the ACLU is defending NAMBLA having a different opinion. The allegation of the lawsuit is that NAMBLA encouraged and provided guidance to the two men who kidnapped, raped and murdered a little boy. The claim is that one of NAMBLA's publications provided detailed instructions on how to how sex with little boys and not go to jail.

I don't find the claim hard to believe (and it deserves to go before a jury); some years back, NAMBLA held its annual convention in San Francisco (in the Women's Building, of course), and their guide for attendees described places where young boys liked to hang out in San Francisco.

We have another lawsuit where someone provided a detailed, non-fictional instruction manual on how to commit a violent felony, but because it didn't involve molesting children, but murder for hire, the publisher lost.
1.9.2006 5:16pm
frankcross (mail):
No, I do not think that finding virtual child pornography protected is lunatic fringe.

Your repeated references to popular opinion, Mr. Cramer, make it seem as if you don't believe in the rule of law but instead the rule of majority. The same is true of your lunatic fringe position, where you casually stereotype a conclusion without addressing any of the legal issues.

I wouldn't even say your conclusions are necessarily wrong. Just that your defense of them is amazingly closed minded and arrogant. If your goal is to get an amen from like thinkers, this may work, but if your goal is to persuade anyone to change their mind, this is not a good strategy.
1.9.2006 5:18pm
David M. Nieporent (www):
To quote the 6th Circuit Court of Appeals:
Our concern is that of the reasonable person. And the ACLU, an organization whose mission is "to ensure that . . . the government [is kept] out of the religion business," does not embody the reasonable person.
I guess this ACLU Derangement Syndrome goes quite a way, doesn't it?
It does indeed, but not to the 6th Circuit, which is not saying what you pretend it is.

The 6th Circuit is not calling the ACLU unreasonable -- a statement which, if made, would fall far short of ACLUDS. (Of course the ACLU takes unreasonable positions occasionally; we all do, from time to time.) Rather, it is saying that the ACLU's position does not define ("embody") the "reasonable person" standard in law. That's a term of art.
1.9.2006 5:19pm
nrein1 (mail):
Deoxy, you are a perfect illustraion of the dangers of this syndrome. People believe the most ridiculous stories, which aren't true, but then act on them. Some parent hearing that might believe it and then not send a bible to school with their kid because they don't want them to get in trouble. It seems to me some actions that people/organizations take in response to ACLU actions, including most of the ones that strike people as ridiculous, are not taking in reaction to real things the ACLU has done but rather urban legends like that you tried to pass off.
1.9.2006 5:20pm
Aultimer:

They made it illegal because:

1. The presence of such [objects] may encourage those with a prediliction towards [doing already-illegal things].

2. [Criminals] use [objects] as a tool for persuading [victims] to [permit perps to do already-illegal things].



Does Clayton's argument for Constitutionality hold up if we substitute "guns" for "computer-drawn child porn"? Does he think so?
1.9.2006 5:21pm
Clayton E. Cramer (mail) (www):

-- Slavery was Constitutional--and we passed an amendment to make it unlawful. --

How can an originalist be on the moral highground when interpreting the Constitution of 1789 if that document is pro-slavery?

What about the civil war? If slavery was constitutional before the 13th Amendment, how was Lincoln justified, on constitutional grounds, in doing what he did?
Garrison called the Constitution a covenant with death because it was pro-slavery, in an indirect, "let's not use that word" way.

1. Slavery was widely believed to be on the way out when the Constitutional Convention met. Even many slave owners regarded it as something of a leftover, and this is why abolition societies were stronger in the South than in the North.

2. All of this changed because of the invention of the cotton gin--which came out for one reason only: the new Constitution provided for patents and copyrights. Eli Whitney decided to get rich inventing something useful. He invented something useful--but it reinvigorated a dying institution--slavery. Appropriately enough, while everyone used it, Whitney didn't make much money from it, having to sue to get any money.

3. Lincoln's actions against slavery required the dumb firebreathers of the South to take action. Lincoln was a good enough lawyer to know that he couldn't take any action against slavery in the states where it already existed. When the Confederate states left, Lincoln had his excuse--although in some of the first instances of Union armies freeing slaves, Lincoln countermanded these orders.

Later, with the Sea Islands, the federal government informed the slave owners who had departed ahead of the invading troops that they had to pay property taxes--and then seized their "property" (slaves) as payment for the unpaid taxes. This provided the needed excuse.

The Emancipation Proclamation, you will notice, only applied to those sections of the country that were in rebellion. Criminals get punished; loyal slave owners weren't.
1.9.2006 5:24pm
Clayton E. Cramer (mail) (www):

Clayton, I'm still not drinking the Kool-Aid to award the Second Amendment the Prophecy-like status that you suggest it deserves (interesting how that works out for conservatives -- the Ninth Amendment is nonjusticiable and would lead to chaos, but the Second Amendment, it's non-negotiable).
I've never heard anyone argue this about the Ninth Amendment.

I do, however, want to find out how many people survived their encounter with a magazine-fed musket--shooter or shootee.
Pepperboxes were notorious for being dangerous to the shooter. I've read nothing that would suggest that magazine-fed muskets were dangerous. (I suspect because of machining technology, they may not have been consistently enough dangerous to the target.)

Nonetheless, compare a blunderbuss (a common Revolutionary War era personal weapon) to a modern firearm. The amount of lead headed your direction--especially in an era when a single piece of shot in your abdomen meant a slow lingering death of peritonitis--shows that there was no shortage of genuine public safety concerns about misuse of firearms.

By the way, single shot pistols were quite small, and so both criminals and the law-abiding carried several. I've held one of Paul Revere's pistols--it is really, really tiny. I could carry four of them with about the effort and discomfort as the Colt Mustang semiauto pistol that I carry--and have only a bit less firepower.
1.9.2006 5:31pm
Clayton E. Cramer (mail) (www):

Deoxy: "Like when they sued to keep a little girl from reading the Bible, SILENTLY, TO HERSELF, on the school-bus. Yeah, just like that. "

Urban legend. Or do you have a cite to back it up?
I can tell you that a friend's son was told not to bring a Bible to school for what was called "free reading" time. He was reading it silently. Any other book would have been okay. But the teacher told him not to bring that one.

Hey, maybe the example above is an urban legend. Or more likely, the ACLU has successfully provoked so much fear in school administrators that they have accomplished something by chilling effect that they could never accomplish by suit.
1.9.2006 5:34pm
Clayton E. Cramer (mail) (www):

No, I do not think that finding virtual child pornography protected is lunatic fringe.
People that line their hats with tinfoil don't think they are lunatic fringe, either. That doesn't make them right.


Your repeated references to popular opinion, Mr. Cramer, make it seem as if you don't believe in the rule of law but instead the rule of majority. The same is true of your lunatic fringe position, where you casually stereotype a conclusion without addressing any of the legal issues.
Oddly enough, I believe in the rule of law--and at least in America, subject to the limitations of the federal and state constitutions, that is the rule of the majority. But just the ACLU says that virtual child pornography is protected by the First Amendment doesn't make it so.

The legal issues? Go ahead. I've read the Court's decision, and to say that I find the argument absurd is being nice.
1.9.2006 5:38pm
Humble Law Student:
Aultimer,

I would just quickly say that the Constitution arguably spefically provides for individuals to bear arms. I don't remember seeing an amendment stating a right to look a virtual child porn. Maybe your copy says that?
1.9.2006 5:40pm
Clayton E. Cramer (mail) (www):

Rather, it is saying that the ACLU's position does not define ("embody") the "reasonable person" standard in law. That's a term of art.
You don't recognize the insulting tone of the whole decision? The ACLU was attempting to censor an exhibition because it found certain ideas offensive--and the 6th Circuit told the ACLU that the reasonable person standard was the basis for deciding this--and the ACLU didn't qualify.
1.9.2006 5:40pm
Mr Diablo:
And now we are back to last week's discussion of anecdotal evidence used as truth, and where some teacher got the law wrong, but that is the ACLU's fault. (Just like the Kopel theory of why feminism caused that crazy New Mexico judge to grant that crazy TRO.)

The "chilling effect" on Christians in this country? Yes, we've got them on the run, they certainly don't have any real power any more. It's really just a matter of time. Oh, pardon? Just two weeks ago, conservatives were complaining that "more people celebrate Christmas now in America than ever before" and that was why the NFL had better stop running those ads that say "Happy Holidays."

That you ended this with "more like the ACLU has..." pretty much proves EV's point to begin. That this is some serious Derangement Syndrome.
1.9.2006 5:44pm
Clayton E. Cramer (mail) (www):


They made it illegal because:

1. The presence of such [objects] may encourage those with a prediliction towards [doing already-illegal things].

2. [Criminals] use [objects] as a tool for persuading [victims] to [permit perps to do already-illegal things].




Does Clayton's argument for Constitutionality hold up if we substitute "guns" for "computer-drawn child porn"? Does he think so?
Several substantial differences:

1. There is strong majority support for banning virtual child pornography. That's why Congress passed that law.

2. There are a number of legitimate uses for guns, such as self-defense, overthrowing tyrannical governments (the primary reason for the Second Amendment), and hunting. And the legitimate uses of virtual child pornography?

3. The Court has long recognized, even when it produced muddled results like Memoirs (1966) that obscenity is not protected by the First Amendment.
1.9.2006 5:44pm
Clayton E. Cramer (mail) (www):

The "chilling effect" on Christians in this country? Yes, we've got them on the run, they certainly don't have any real power any more. It's really just a matter of time.
Let's see:

1. No state can prohibit abortions in the first trimester, and even an attempt to ban what is effectively infanticide gets tied up in the courts.

2. Laws prohibiting homosexual sex are struck down by the Supreme Court.

3. Laws prohibiting hardcore pornographic portrayals of rape and murder are almost never enforced--and are now being challenged in the federal courts.

4. Even innocuous symbols, such as a cross in a historic setting on a county seal, must be removed.

5. State courts impose same-sex marriage or "civil unions."

Now, if you are a liberal, you doubtless like all of these public policy changes. But don't tell me that Christians (being only an insignificant 80% of the population) aren't in declining power.
1.9.2006 5:50pm
uh clem (mail):
"I can tell you that a friend's son was told not to bring a Bible to school for what was called "free reading" time. He was reading it silently. Any other book would have been okay."

"A friends son" Right. I smell another urban legend. Please either provide specifics, or stop spreading myths. I'll bet you can't provide any independint verification of your little anecdote. Name? School? Teacher? Anything?

And assuming your anecdotal evidence is genuine what does this have to do with the ACLU?

"the ACLU has successfully provoked so much fear in school administrators that they have accomplished something by chilling effect that they could never accomplish by suit."

Right. Everything's their fault, even the things that they have no control over. Sheesh. How long are you going to hang around proving and re-proving Eugene's point.
1.9.2006 5:55pm
Eugene Volokh (www):
Dr. Weevil: You get the cigar! "Obscure legal-literary allusion" it is; I had thought of including an explanatory link under Somdomite, but I thought that would undermine the (questionable) charm of the allusion.
1.9.2006 5:58pm
Mark F. (mail):
I would just quickly say that the Constitution arguably spefically provides for individuals to bear arms. I don't remember seeing an amendment stating a right to look a virtual child porn. Maybe your copy says that?

My copy doesn't say anything about the federal government having the power to restrict viewing of virtual child porn.
1.9.2006 6:00pm
David M. Nieporent (www):
You don't recognize the insulting tone of the whole decision?
I recognize that the whole decision insulted our intelligence by pretending two statements that were clearly false were true:

1) That the Ten Commandments have a "secular nature."
2) That the Ten Commandments have any relation to the development of our legal system.

But that's tangential. The 6th Circuit did not agree with the ACLU's arguments; it did not call the ACLU unreasonable in making those arguments.

Speaking of unreasonable, you haven't responded to the above poster who pointed out that left wing radical NAMBLA fan Clarence Thomas came down in favor of the constitutionally-protected nature of virtual child porn.
1.9.2006 6:03pm
Clayton E. Cramer (mail) (www):

"A friends son" Right. I smell another urban legend. Please either provide specifics, or stop spreading myths. I'll bet you can't provide any independint verification of your little anecdote. Name? School? Teacher? Anything?
Gold Ridge Elementary School, Rohnert Park, California. The student's name was Timmy Hughes.


And assuming your anecdotal evidence is genuine what does this have to do with the ACLU?
Already explained; the intimidating effects of these lawsuits are obvious.

Imagine if say, the Rev. Fred Phelps filed suit against employers, demanding lists of "domestic partners" receiving health insurance, and they found a couple of judges willing to do so under some bizarre discovery motion. Do you suppose that this might have a chilling effect on homosexuals registering their domestic partners for health insurance?
1.9.2006 6:04pm
Eugene Volokh (www):
It seems to me that if Justices Stevens, Kennedy, Souter, Thomas, Ginsburg, and Breyer -- one pretty solid conservative, one moderate conservative, and four liberals (one of whom, Breyer, has actually taken a relatively conservative view of at least some restrictions on sexually themed speech) -- reach a result, that result is pretty much definitionally not "lunatic fringe."

That doesn't make the result right, any more than popular opposition to the result might make it wrong. But when a view is s held by judges who usually aren't seen as particular lunatics, and by judges from both the right and the left, "lunatic fringe" is simply an incorrect way of describing it, just as it's incorrect to describe various majority or substantial minority views as "out of the mainstream" (something I've declaimed against in other threads).

Again, such characterizations seem to me to betray a certain lack of perspective. It's not enough that a view be mistaken, or contrary to original meaning (and note that even if focusing primarily on original meaning is the proper approach to jurisprudence, it's hardly "lunatic fringe" to argue otherwise). Rather, the generally pretty sober Justices who disagree with you must be lunatics, and the view of six of nine Justices is the lunatic fringe. Not itself the most sober or helpful way of thinking through legal debates, it seems to me.
1.9.2006 6:06pm
Clayton E. Cramer (mail) (www):

My copy doesn't say anything about the federal government having the power to restrict viewing of virtual child porn.
I do hope law schools are teaching something a bit more sophisticated than the fundamentalist/literalist model of the Constitution, or you would think the Second Amendment guarantees a right to carry nuclear weapons.
1.9.2006 6:07pm
Clayton E. Cramer (mail) (www):

It seems to me that if Justices Stevens, Kennedy, Souter, Thomas, Ginsburg, and Breyer -- one pretty solid conservative, one moderate conservative, and four liberals (one of whom, Breyer, has actually taken a relatively conservative view of at least some restrictions on sexually themed speech) -- reach a result, that result is pretty much definitionally not "lunatic fringe."
You know that you have entered an asylum for the insane when a position that is supported by a bit larger than the same fraction of the population that thinks the Earth is flat, is considered "mainstream."
1.9.2006 6:12pm
nrein1 (mail):
No Mr. Cramer the ACLU has nothing to do with your friend's son not being able to read a bible, in fact you have more to do with that than they do. By making people believe that they are likely to sue in such a situation, something that has never happened nor looking at when they have sued, likely to happen (but as the professor pointed out that is one of the signs of this derangement, ignoring all evidence to the contrary)you are making people believe that they might be in trouble if they do not stop a child from reading the bible.

Using your logic, it the president's fault if Belgium charges him with a war crime because his other actions have made it reasonable to assume he is a war criminal. (oh wait that is ridiculous)
1.9.2006 6:15pm
David M. Nieporent (www):
It seems to me that if Justices Stevens, Kennedy, Souter, Thomas, Ginsburg, and Breyer -- one pretty solid conservative, one moderate conservative, and four liberals (one of whom, Breyer, has actually taken a relatively conservative view of at least some restrictions on sexually themed speech) -- reach a result, that result is pretty much definitionally not "lunatic fringe."
Exactly. Clayton suffers from the same problem as the PfAW/NYT/Alliance for Justice crowd discussing Republican judicial nominees. They use "out of the mainstream" not as synonymous with ideas that few people hold outside of obscure websites, but as synonymous with "I disagree."

"I can tell you that a friend's son was told not to bring a Bible to school for what was called "free reading" time. He was reading it silently. Any other book would have been okay."
There's a reason hearsay isn't allowed in court. Is that really what happened? (I confess that when I came home and told my parents that "My teachers said [Wacky thing X]," it occasionally was the case that I wasn't telling my parents the whole story.)

Or perhaps the teacher really said it. But it is not the ACLU's fault, no matter how many times you make your silly argument about "chilling effects," every time a teacher makes an idiotic decision. It's certainly not the case that the ACLU is running out of Establishment cases to bring -- so obviously plenty of people aren't being "chilled."
1.9.2006 6:19pm
Clayton E. Cramer (mail) (www):

No Mr. Cramer the ACLU has nothing to do with your friend's son not being able to read a bible, in fact you have more to do with that than they do.
It is rather difficult to predict from year to year what is unconstitutional, you know. Would you have guessed, ten years ago, that a county seal with a historic depiction of a mission on it, was in violation of the establishment clause?

That's the wonderful thing about the evolving Constitution--it keeps changing, often so quickly that what it meant forty years ago is the opposite of what it means today.

It is difficult to predict what the ACLU's Constitution will say in 2030. My guess: children won't have a right to deny sex to adults, because it interferes with the right of an adult to pursue happiness, and the child is just being puritanical, anyway.
1.9.2006 6:20pm
Clayton E. Cramer (mail) (www):

Exactly. Clayton suffers from the same problem as the PfAW/NYT/Alliance for Justice crowd discussing Republican judicial nominees. They use "out of the mainstream" not as synonymous with ideas that few people hold outside of obscure websites, but as synonymous with "I disagree."
Let's try this again: do you honestly think that there is even 10% of the population that thinks virtual child pornography should be legal? There's a reason Congress passed this law.

Who is out the mainstream? A crowd that thinks depictions of little girls being raped protected freedom of expression? Or a crowd that thinks this is rightly banned as a dangerous and pointless expression of depravity?

This posting started out Professor Volokh insulting me, saying that I was "deranged" about the ACLU--and it has degenerated into the ACLU's defenders arguing that I am out of the mainstream for thinking child pornography should not be protected by the First Amendment.
1.9.2006 6:25pm
A Member of the ACLU from 1960 Magically Transported to 2006 (mail):
I'm sorry, maybe I'm stopping into this computer page a little late in the game, but I'm confused. Is it true that the group that I joined to protect the civil rights of opressed minority Americans is now advocating child pornography and molestation? They're litigating against the military to release foreign-born, foreign-captured fighters captured on battlefields fighting against American soldiers?

I'm sorry, but I thought this was a reasonable organization doing real good for a large segment of this country. I guess I was wrong, too bad no one else seemed willing to also step back and look at what the ACLU has become over the years.

I have no doubt this organization will pursue an anti-religious agenda (in between suing to try to legalize marriage between man and dog). Luckily, it has marginalized itself so much, I doubt it will ever be all that sucessful.
1.9.2006 6:27pm
Deoxy (mail):

Deoxy: "Like when they sued to keep a little girl from reading the Bible, SILENTLY, TO HERSELF, on the school-bus. Yeah, just like that. "

Urban legend. Or do you have a cite to back it up?


I saw it on a television program some years back - complete with interviews of the family and the little girl who was doing the reading. "60 minutes", I think, or one of those type shows (one of those shows on one of the big 3 networks).

It is, of course, possible that all of those people were just plain lying. Just because it's on TV doesn't make it true - but again, they did have interviews with the primary people involved. I don't currently have the time to do a web serach for it, sorry.


-- Slavery was Constitutional--and we passed an amendment to make it unlawful. --

How can an originalist be on the moral highground when interpreting the Constitution of 1789 if that document is pro-slavery?


Perhaps you don't understand what "originalist" means: it is someone who tries to apply the meaning of the Constitution as those words meant AT THE TIME. That would, of course, apply to the Amendments to the Constitution and the time that they were written.


Where has the ACLU (and not some rinky-dink chapter, let's go with the guys at the top) directly advocated against your personal, private rights?


Freedom of Association. The DIRECTLY advcated AGAINST my PERSONAL right to form associations based on the religios beliefs of those associations. Gee, that was easy. Any other "hard" questions?

Oh, hey - there was a LOT of stuff posted after I read the comments but before my comment hit - I'll repsond to a few of them:


Most people in this country do not subscribe to the view that abortion should be illegal in all circumstances.


That's right - the MAJORITY think that abortion should be legal in cases of rape and when the life of the mother is at stake... which almost perfectly fits what should happen if the fetus is considered a person (witness the ethics of a person walking by a pool where someone is drowning, with the drowning person being the fetus and the woman OR THE RAPIST being the person who threw them in - the woman by having consensual sex). That hardly fits the "abortion should be lega" crowd's description of it, of course, but that's the actual results of the surveys.


Ahh, so that's your argument: the Constitution is an unchangable document (except by Amendment) and whatever was constitutionally unprotected in 1789 (and thus illegal) must remain constitutionally unprotected today. And if the mores of society change over time, that is irrelevant to your doctrine of constitutional interpretation, as the 1789 rules must still prevail. And anyone who legally argues otherwise (including what is now almost a century of evolving Supreme Court precedents) is an extremist?


YES. Oddly enough, if the most basic, underlying foundation of our society is to be changed, I think it should actually be cahnged through the Amendment process, not the vote of 5 out of 9 Justices.

Laws are to be written and repealed, etc, by the legislature - this covers most of your "mores of soceity" part. But what is actually Constitutionall or unConstitutional SHOULD NOT CHANGE save by Amendment. If we can just redefine the words to mean whatever we want, then the words meean NOTHING and have no binding power at all.

Otherwise, we are simply ruled by nine judges in black robes.


And yet several of the arguments made by other posters criticize the ACLU for defending NAMBLA's right to disagree.


I haven't seen anyone on this thread criticize NAMBLA's right to disagree. I HAVE seen people disagree (and call criminal) NAMBLA publishing material with the expreess purpose of helping people commit and crime and get away with it. That is ever-so-slightly different. But hey, have fun with your strawman, eh?


Look, as far as policy goes, the bulk of such abortions are done to protect the life or health of the mother. Plus, even if my factual assertion were wrong, the Supreme Court has sided with those who have argued that states that want to restrict such abortions must provide an exception for the life or health of the mother.


The first statement is a RIDICULOUS falsehood. How can I say that? Compare number of abortions per year to how many women were dying of childbirth or pregnancy-related problems before Roe. DUH. Anyone paying marginal attention can see that, and I get tired of hearing it from people.

The second statement is just fine... but then, partial birth abortion (which was the referenced "absurb" thing that was being defended) is almost NEVER for the "health of the mother" anyway, AND bills have been struck down that HAD exceptions for the health of the mother. Next?
1.9.2006 6:32pm
Miguel Andres (mail):
Bob Bobstein and Decius:

Perhaps I was a bit broad in criticizing the ACLU's support of abortion. Mr. Cramer's critique of the American Criminal Libertine Union's support of partial birth abortion hits the spot quite nicely. Mr. Bobstein states that most abortions are done to protect the life of the mother, which is patently untrue. But what is true is that the majority of abortions are done upon minorities in this country, which also fulfills the eugenic aim of one of the ACLU's erstwhile allies, Planned Parenthood. PP, being an organization that Professor Volokh might say is a victim of the "Deranged Minority Lives" Syndrome.

There is no medical justification for slaughtering a baby at the point of its birth (i.e. partial birth abortion). There may be a legal justification, which might be to escape homicide laws, and to live life without being inconvenienced by a child. On this no reasonable person can also disagree (except perhaps for some commenters on this blog).

As to the "great majority" of Americans supporting abortion rights, where is the evidence for that? As in all polling, it depends upon how the question is asked. And if a majority, however slight, do support some sort of right to abort their babies, why is that? It is perhaps the teaching effect of the law. When the U.S. Supreme Court, our modern day rulers, first passed the legislation now known as Roe v. Wade, the great majority of Americans opposed the "right" to abort one's unborn child. But given the teaching effect of law, the sentiment has tended to change in this country. "If it is the law, it must be right." The unlawful usurpation of legislative authority by the Kings on the Supreme Court has caused and will continue to cause great dissension in this country. But if the decision is ever returned to the States, the damage begun by the Supreme Kings will have already been done. The lack of respect for the life of the innocent unborn, infirmed, and the elderly has risen greatly in the years since the passage of Roe v. Wade. The positive law is a teacher also, as was amply demonstrated in Nazi Germany so many years ago. How could we forget? We should not let organizations such as the ACLU and Planned Parenthood set the agenda ...
1.9.2006 6:33pm
Medis:
I do find it interesting to wonder why some people need to believe that those who disagree with them are "insane" or "lunatics".

Personally, it seems obvious to me that sane (and smart, and well-intentioned) people have fundamental disagreements with each other all the time. So, in my view such a disagreement does not necessarily reflect poorly on the sanity of either party to the disagreement. And yet, according to some people, it seems as if the only way someone could refuse to agree with them is if this other person is "insane".

Of course, maybe they do not actually believe that, and this is all just rhetoric (misguided as it may be, at least if persuasion is the goal). But I sometimes get the sense that the rhetoric has become reality, at least for some people.

But I still don't think that is a "syndrome".
1.9.2006 6:36pm
NickM (mail) (www):
JosephSlater - if your practice brings you in front of Ninth Circuit Court of Appeals Judge Harry Pregerson, tell him you're from the ACLU. In one well-known death penalty matter, he issued a stay of execution without possibly having read the papers on the ground, as he publicly stated, that "the ACLU asked me to".

Sorry, Eugene, but this is nothing comparable to Bush Derangement Syndrome. That, properly applied, is held by people who believe and expound on utterly fantastical claims of how Bush is evil on par with Cthulhu (e.g., if you think Bush is grossly overstepping Constitutional bounds on executive power or lied to get the country to go to war, that's not deranged; if you think Bush sacrificed small children to the owl gods and that he faked having a plane hit the Pentagon on 9/11 as part of a staged attack on the U.S., that's deranged).

Nick
1.9.2006 6:40pm
Clayton E. Cramer (mail) (www):

I do find it interesting to wonder why some people need to believe that those who disagree with them are "insane" or "lunatics".
It has a lot to do with how strongly you feel about an issue, I think. I am much less supportive of decriminalization of drugs than I was ten years ago, largely because I lived in a community where, for practical purposes, most drugs were legal. The results didn't quite match my idealistic expectations. I am not a big fan of the more outrageous stuff that gets lumped together as "War on Drugs," either. The best hope is educating people about the dangers of intoxicants (including the legal ones, like alcohol, and the accelerator pedal on your car). Still, I can talk to people on both sides of the debate, and see legitimate differences of opinion.

I can see legitimate differences of opinion about pornography. I don't think it does much harm (if any) to most adults, but I do think rather differently with respect to letting kids have access to it. I can disagree with people about these issues, without assuming that they are dishonest or crazy.

I tend to get pretty upset about child molestation and the related cultural artifacts, such as child pornography. Now, I know that for a lot of you, this is all an abstract concept. You are thinking of a naked baby on a rug. Sorry, but that's not what the law was written for. One of the Internet newsgroups that I used to read was alt.binaries.pictures.astro--a group for posting pictures of astronomical objects. One day, some jerk decided that any newsgroup with alt.binaries.pictures in it had to be for pornography (as many of them were, and are). So he posted a picture to alt.binaries.pictures.astro (and a few dozen others) of a prepubescent girl (I doubt that she was even nine) on her knees, having oral sex with an adult man. Before I knew it, this repulsive picture was on the screen.

Now, some of you (especially you idealistic ones) obviously have not had children, and don't remember your childhood very well. You have no idea how innocent, naive, and easily taken advantage of children are. But most Americans are a bit better in touch with reality. We know, and we know that trash like this deserves one protection only--some plastic on it at the evidence table when the creep distributing it goes to trial.

Get past your beautiful little abstractions, and look at real people, real children, real injuries, and stop pretending that this garbage is even in the same category as Hustler. (Are they still in business?)
1.9.2006 6:51pm
KMAJ (mail):
Miguel Andres,

Any who claim the majority support unfettered abortion rights or a ban on abortion are playing fast and loose with the facts. The accurate description is that the majority support some restrictions on abortion, including a ban on partial birth abortion, spousal notification and parental notification. The vast majority support exceptions for rape, incest and a health exclusion, though some disagreement exists on what constitutes a health threat. There is also majority support for limited exclusions to both notification proposlas. There is no majority support for either extreme position. The percentages vary depending on the specific restriction. You are right, when the wrong question is asked, you get distorted results that are misinterpreted.
1.9.2006 6:51pm
Miguel Andres (mail):
KMAJ:
Of course, polls (and whatever is going on in foreign countries) shouldn't be relevant to what our venerable Rulers on the SC do. Polls might be relevant to what legislators do, I suppose. But then, what power do legislators have anyways?
1.9.2006 7:16pm
David M. Nieporent (www):
Mr. Bobstein states that most abortions are done to protect the life of the mother, which is patently untrue.
It is patently untrue that he said that. Read more carefully, please. What he actually said was
Look, as far as policy goes, the bulk of such abortions are done to protect the life or health of the mother.
(Emphasis added.) That is, the bulk of partial birth abortions.
1.9.2006 7:17pm
Eugene Volokh (www):
Deoxy: I tried to find the incident you described about "they [the ACLU] su[ing] to keep a little girl from reading the Bible, SILENTLY, TO HERSELF, on the school-bus. Yeah, just like that." I did find an oft-cited incident in which a woman (Ellen Pearson) did complain about her girl being told that she couldn't read her Bible on the school bus. But the ACLU didn't sue there; this was the school administrators' action, which they withdrew under legal pressure from the Rutherford Institute.

Did it really happen "just like that" in some other case? If you have the details, please let me know.

(I realize that one could argue that the ACLU is indirectly responsible for this, because they brought suit in very different cases and their victories led school officials to restrict even speech that the ACLU has never complained about. But that would be a much tougher argument, since the ACLU's lawsuits never involved, to my knowledge, such private reading by a student to herself; you'd have to show why the ACLU is properly held responsible for government officials' clear misreadings of the law. And in any event, that is hardly "just like" the ACLU's actually suing to keep the girl from reading the Bible, which is what the original comment asserted.)
1.9.2006 7:20pm
Andy (mail) (www):

Remember, in Limon they argued that minors have a "due process liberty interest" in being able to have sex with adults. That's a bit more serious than the right to see child pornography.


Actually, no. The ACLU's argument in Limon wasn't based on wanting to legalize adult-child sex, but rather that a Kansas law that provides for lesser penalties to heterosexual relations between an 18-year-old and a juvenile but does not provide the same allowances for homosexual relations within that same age group.

From the ACLU brief in the Limon case:

"Matthew does not claim that criminalizing consensual sexual activity between two teenagers [note: this cite references a Kansas law that treats 18-year-olds as teenagers for the purpose of criminalizing sexual activity -AC] violates the Due Process Clause. To the contrary, he concedes that the State has a compelling interest in discouraging all teenagers from engaging in sexual activity with 14 or 15 year-olds and agrees that that interest justifies the penalties in the Romeo &Juliet law. What Matthew challenges, under the Equal Protection Clause, is the fact that the exclusion in the Romeo &Juliet law unequally penalizes gay teenagers when they exercise the liberty interest discussed in Lawrence."


I haven't seen anyone on this thread criticize NAMBLA's right to disagree. I HAVE seen people disagree (and call criminal) NAMBLA publishing material with the expreess purpose of helping people commit and crime and get away with it. That is ever-so-slightly different. But hey, have fun with your strawman, eh?


It's not a strawman when the two scenarios above coincide. NAMBLA disagrees (wrongly, IMHO, but that's not the point of this argument) with the current laws criminalizing adult-child sex. (The ACLU, as my cite above shows, supports those laws, as long as they are equally applied to both heterosexual and homosexual conduct.) So NAMBLA, to criticize those laws, publishes pamphlets rationalizing why they believe the laws are wrong and adult-child sex is OK.

And yet NAMBLA opponents view this as "helping people commit crime[s]" since they believe that showing approval for adult-child sex is tantamount to giving pedophiles the means and opportunity to act on their preversions. Hence, NAMBLA's publishing activities must be criminalized.


...[T]he 1789 rules must still prevail. And anyone who legally argues otherwise (including what is now almost a century of evolving Supreme Court precedents) is an extremist?

YES. Oddly enough, if the most basic, underlying foundation of our society is to be changed, I think it should actually be cahnged through the Amendment process, not the vote of 5 out of 9 Justices. Laws are to be written and repealed, etc, by the legislature...


So which decision was incorrect: Plessy or Brown? And how does this reasoning substantially differ from Lochner?
1.9.2006 7:20pm
Bob Loblaw (www):

Thank you Mr. Cramer. You have been most entertaining.

And thank you, Mr. Volokh. You couldn't have come up with a more compelling 'exibit A' if you hired him from central casting.
Bingo! We have a winner.
1.9.2006 7:21pm
Decius (www):

Do you honestly think that there is even 10% of the population that thinks virtual child pornography should be legal?


It depends on how you ask the question. How is a film adaptation of Romeo and Juliet which involves nudity not virtual child pornography? Clearly it is. Such films exist. Would you assert that such a film is likely to insite the abuse of children? I think thats a bit questionable. Child Pornography is illegal because it is the product of abuse of children. Virtual "Child Pornography" is something else entirely. Its a thoughtcrime, and its something about which reasonable people might disagree.

You've given us a list of interests. They have a common theme:


1. No state can prohibit abortions in the first trimester, and even an attempt to ban what is effectively infanticide gets tied up in the courts.


With respect to the assertions you guys have made that a partial birth abortion is never medically necessary, I don't really think you know that. I certainly don't know that, and I wouldn't presume to differ with a medical doctor about it.


2. Laws prohibiting homosexual sex are struck down by the Supreme Court.


You want to prohibit other people from engaging in a sexual act that has no impact on you whatsoever.


3. Laws prohibiting hardcore pornographic portrayals of rape and murder are almost never enforced—and are now being challenged in the federal courts.


You want to prohibit other people from producing or consuming media that you don't like, despite the fact that this has no impact on you whatsoever. (Please spare me the assumption of terciary impacts. Clearly it is possible to watch such portrayals without subsiquently committing a crime. Is it possible to own a gun without committing murder?)

4. Even innocuous symbols, such as a cross in a historic setting on a county seal, must be removed.


You want to use my tax money to promote your religion.

5. State courts impose same-sex marriage or "civil unions."


You want to prevent other people from getting married because you don't like them, even though their marriage has no impact on you whatsoever.

What all of these things boil down to is that you want to use the legal system to prevent other people from engaging in behavior that you don't like, even though it has no impact on you (or anyone else) whatsoever. The only exception here is with respect to abortion, but the jury is most certainly out on whether a first trimester fetus ought to be considered a person, and there are a significant number of people who don't agree with that at all. You want to require them to agree.

What this boils down to is that you want to impose your perspective on other people who don't agree with it. You don't like Constitutional guarantees of things like freedom of speech, and the people who defend them, because they get in the way of your ability to use the law to control other people, specifically what other people think about.

What this also means is that arguments that Christians are the victims of oppression from evil secular forces are disengenuous. You aren't complaining that you can't do what you want do to. You are complaining that you can't force other people to do things they don't want to do. Cry me a fucking river.

A free country is by definition a place where people can mostly do, and in particular, think, what they want to. If you want them to agree with you, you've got to do it by convincing them rather then compelling them by force.
1.9.2006 7:53pm
Kurt:

You know that you have entered an asylum for the insane when a position that is supported by a bit larger than the same fraction of the population that thinks the Earth is flat, is considered "mainstream."


You've cited this alleged poll many times now; I'd be curious to see a link.
1.9.2006 7:56pm
Noah Klein (mail):


I will not get into the defense of virtual child pornography, because I don't know anything about it and it is just too disgusting for me to read about and form an opinion. I am glad that some are willing to defend even the most disgusting.

On the issue of the book NAMBLA producing a book to inform people how to commit a crime, I don't see how this does not violate an imminent danger, which is why the book Shooter was called illegal.

Yet I think that people who are arguing against the ACLU in this thread forget a simple fact that is enshrined in the constitution: the rights of the minority need to be protected from the majority. In other words the constitution enshires the idea that "I will defend to death your right to say something that I would spend the rest of my life arguing against." This is the purpose behind the 1st, 3rd, 4th, 5th, and 8th amendments. The majority does not have a threat to their beliefs, positions or other opinions because they are the majority. How do outlaw Christianity in this country? How do you stop a majority of people in this country from believing homosexuality to be a sin? The answer is you can't.

Clayton writes that these five examples shows how the courts are attacking Christianity:

1. No state can prohibit abortions in the first trimester, and even an attempt to ban what is effectively infanticide gets tied up in the courts.

2. Laws prohibiting homosexual sex are struck down by the Supreme Court.

3. Laws prohibiting hardcore pornographic portrayals of rape and murder are almost never enforced--and are now being challenged in the federal courts.

4. Even innocuous symbols, such as a cross in a historic setting on a county seal, must be removed.

5. State courts impose same-sex marriage or "civil unions."

The courts aren't attacking Christianity here. There not saying that you can't believe what believe. There not saying you can't sit on a bus or on sidewalk or on television and expound upon the virtues of Christianity. I know this because I seen on a bus, on the sidewalk and on TV people telling of the virtues of Christianity. What Court says here is that other people's beliefs and practices of abortion, homosexuality and their unions and pornography cannot be denied to them. And that the government cannot recognize one religion above another. A person can be against abortion. If they don't like, they don't have to perform or have it performed on them. The same with homosexuality and pornography. But you are trying to force your opinions here on other people. This is what the court has said is unconstitutional. Not your belief, but your attempt to convert people to your belief through the law.


Finally, as to Clayton's failure to hear the opinion, which he has implicitly expressed, that the Ninth Amendment is non-justicable, I will describe a visit I had to the Heritage Foundation one day. The failure of the court to enforce the provisions of the ninth amendment in a way beyond tangential has been a very big issue with me for some time. In college, I got a job helping students from schools outside D.C. come to D.C. and get internships and learn about the government first hand. One of my responsibilities was to go weekly on tours of things around D.C. We went one day to the Heritage Foundation where we had a meeting with one of the analysts who worked there. The analyst went through whole speech of their beliefs, what they do and so on. At one point, he made the argument, which I believe some who have been arguing against the ACLU have made, that the constitution does not recognize any rights beyond those explicitly stated. This angered me greatly, because of ninth amendment, of course. So I asked when he was done with speech, "What about the ninth amendment?" He said that for the ninth amendment to apply Congress would have to pass a law making that whatever right someone is asserting. I said "Wouldn't that make the ninth amendment useless?" And he basically gave me no answer.

These rights that people say the Court has confirmed like the right to privacy and abortion, the right to homosexual sex, the right to decide how you live your life are all encompassed in the ninth amendment. The founders knew they were smart. They fought a war against the British Empire and won. They had formed state governments that were stable and democratic ignoring all the detractors. Individuals in the Constitutional Congress and the First Congress were among the tops of the professions in law, medicine, academics, science, business, philosophy and often at the tops of several professions. But being so smart, they knew they were not omniscient. This is exactly why Madison did want to have a bill of rights. Because he knew he couldn't declare all rights that people deserve throughout time and he knew that if the document listed a group of rights people would say that it was exclusive. What the law call a negative pregnant. So he ingeniously wrote the ninth amendment, which basically says all rights not given to the government are given to the people.

Noah
1.9.2006 8:33pm
JosephSlater (mail):
NickM wrote: JosephSlater - if your practice brings you in front of Ninth Circuit Court of Appeals Judge Harry Pregerson, tell him you're from the ACLU. In one well-known death penalty matter, he issued a stay of execution without possibly having read the papers on the ground, as he publicly stated, that "the ACLU asked me to".

---
Thanks, that's really excellent advice based on incident for which I'm sure you have reliable cites. But even so, it wouldn't come close to supporting Clayton's point, which is apparently that the ACLU has illegitimately seduced consistent majorities of the Supreme Court and the federal judiciary in general into completely lawless positions that we wouldn't have if not for the ACLU.

Still, based on this thread, I'm going to tell everyone that I'm in the ACLU; then judges will all do what I say. If only I had known about this trick earlier in my legal career.

Eugene has had his point proven more emphatically than could have been imagined.
1.9.2006 9:42pm
Bob Van Burkleo (mail):

1. No state can prohibit abortions in the first trimester, and even an attempt to ban what is effectively infanticide gets tied up in the courts.

2. Laws prohibiting homosexual sex are struck down by the Supreme Court.

5. State courts impose same-sex marriage or "civil unions.


And these are all totally non-mandatory. No woman must have an abortion. Obviously no one must participate in homosexual sex. And giving all citizens equal reasonable access to government features, who could be against that?

That's why the labels of conservatives and liberal are misleading - the two major opposition groups these days are those that want to limit the choices of their fellow citizens and those that think a citizen's range of choices should be as wide as possible. The ACLU being a 'civil liberties' centric organization will obviously fall on the 'liberal' side of that line most of the times just as the 'the majority can make every member of society do whatever the majority wants' has its legal advocacy groups. The ACLU is supposed to test the limits of 'liberty' just as they should sometimes lose a battle here and there. Personally I appreciate their efforts as I agree with Thomas Jefferson:

""I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it."

"1. No state can prohibit abortions in the first trimester, and even an attempt to ban what is effectively infanticide gets tied up in the courts.

2. Laws prohibiting homosexual sex are struck down by the Supreme Court.

5. State courts impose same-sex marriage or "civil unions."

And these are all totally non-mandatory. No woman must have an abortion. Obviously no one must participate in homosexual sex. And giving all citizens equal reasonable access to government features, who could be against that?

That's why the labels of conservatives and liberal are misleading - the two major opposition groups these days are those that want to limit the choices of their fellow citizens and those that think a citizen's range of choices should be as wide as possible. The ACLU being a 'civil liberties' centric organization will obviously fall on the 'liberal' side of that line most of the times just as the 'the majority can make every member of society do whatever the majority wants' has its legal advocacy groups. The ACLU is supposed to test the limits of 'liberty' just as they should sometimes lose a battle here and there. Personally though I appreciate their efforts as I agree with Thomas Jefferson:

""I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it."

"1. No state can prohibit abortions in the first trimester, and even an attempt to ban what is effectively infanticide gets tied up in the courts.

2. Laws prohibiting homosexual sex are struck down by the Supreme Court.

5. State courts impose same-sex marriage or "civil unions."

And these are all totally non-mandatory. No woman must have an abortion. Obviously no one must participate in homosexual sex. And giving all citizens equal reasonable access to government features, who could be against that?

That's why the labels of conservatives and liberal are misleading - the two major opposition groups these days are those that want to limit the choices of their fellow citizens and those that think a citizen's range of choices should be as wide as possible. The ACLU being a 'civil liberties' centric organization will obviously fall on the 'liberal' side of that line most of the times just as the 'the majority can make every member of society do whatever the majority wants' has its legal advocacy groups. The ACLU is supposed to test the limits of 'liberty' just as they should sometimes lose a battle here and there. Personally though I appreciate their efforts as I agree with Thomas Jefferson:

""I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it."
1.9.2006 10:13pm
Deoxy (mail):
Incident with girl reading on bus: I told you all I remember about it. As I said, it's possible the program got it wrong (I know that I have seen stuff on TV was was obviously wrong), but it would have been a bit more of a bald-faced lie than usual.

Decius, Noah, Bob:

You are missing the point of the list of 5 things. It's not that people are being forced to do these things, it's that they are being legalized over the objection of well over 50% of the population, and through non-legislative means. That is, they are examples of how Christians are being, basically, ignored, desipte being the majority.

decius in particular is being completely and intentionally dense. Example:

" 4. Even innocuous symbols, such as a cross in a historic setting on a county seal, must be removed.

You want to use my tax money to promote your religion."

No, you are trying to REWRITE HISTORY. You know that "Los Angeles" is short for some big Spanish phrase which basically boils down to "The Church of the Angels" or something VERY religious like that, right? The NAME of the city comes from the mission that founded it, the ACLU just got even a pictorial reference to that mission removed. That's historical revisionism. To say that that seal, which also had a picture of a greek goddess on it, was a Christian attempt to "promote [my] religion" is completely and utterly absurd, just like most of the other reactions you listed.

Here's another interesting point:

"But you are trying to force your opinions here on other people. This is what the court has said is unconstitutional. Not your belief, but your attempt to convert people to your belief through the law."

Oh, no - forcibly converting people's belief's through the law is just fine, as long it's "the right" beliefs. Witness "affirmative action", and many, many race and gender related hiring regulations that affect PRIVATE businesses.

That is, if I OWN my OWN BUSINESS, once I reach a certain number of employees, I can no longer hire whoever I want. Let us say, ONLY FOR THE SAKE OF ARGUMENT, that I was gay, that I hate women, and I only want to work with men. I therefore only want to HIRE men. Well, the government would have something to say about that. (Good chance they wouldn't if I was a woman, though.) Actually, if I was gay, I'd might get away with it... but if I was straight and just didn't like working with women, I probably wouldn't.

What is that if not an "attempt to convert people to [a certain] belief through the law"? But hey, that's all fine and dandy, because hey, those are "the right" beliefs.

I would assert that many such recent changes are also "attempt[s] to convert people to [a certain] belief through the law". That is, as someone noted about, using the "teaching" aspect of the law to say certain things are OK.

"You don't like Constitutional guarantees of things like freedom of speech, and the people who defend them, because they get in the way of your ability to use the law to control other people, specifically what other people think about."

As kindly as I can, I'm just going to say that you OBVIOUSLY don't understand me (or a great many of my fellow travellers) AT ALL. Not on the same planet. Nor do you understand the men who actually WROTE the Constitution AT ALL. Not on the same planet. Go and look at the society they created and ran using this document, then wonder why all these things that you seem to think are inherent to the document... weren't there.

Most of all, realize that many people on the other side of the debate might well be quite content with some of the results of the last 40 years of SCOTUS action but at the same time be quite tremendously horrified that those results came from SCOTUS action instead of legislative action (that would be me, by the way). Check my comment on being ruled by 9 in black robes; remember that WHO wears those robes will change over time, and that those changes will not necessarily be the way YOU want them.

"On the issue of the book NAMBLA producing a book to inform people how to commit a crime, I don't see how this does not violate an imminent danger, which is why the book Shooter was called illegal."

Neither do I, or anyone else who looks at it seriously. That's what we are saying is wrong. They can certainly have their opinion - the only way to change law is to be allowed it think and (usually) publicly proclaim that it needs to be changed, so difference of opinion muct CERTAINLY be allowed, or "freedom" doesn't actually exist - but actually advocating breaking the law and giving clear instructions on how to do so with the least liklihood of getting caught is, well, bad. Hence our condemnation.

"So which decision was incorrect: Plessy or Brown?"

Boy, been a while since I studied the details of those, so bear with me. Plessy v Ferguson was "separate but equal", and Brown v Board of Education said the opposite, right? Unfortunately, I don't recall which Amendments were in place during each one, so I reallly can't say for sure. I THINK that Plessy was probably Constitutionally correct at the time, while Brown was probably an over-reach. I LIKE Brown, mind you, but (again, going on VERY fuzzy memory, here) that it was a judicial over-reach that should have been handled by the legislature. Well, unless the 14th Amendment was in place (14th, I think... um, the one that says equal treatment regardless of race), in which case Brown would be correct. I don't think the 14th was in place at the time of Plessy, was it? The constitution certainly had the flaw of racism and slavery at its conception, not TOO firmly entrenched (the founders struggled to get it out entirely, but failed), but there; to attempt to read racism OUT of the Constitution without an Amendment would have been wrong (though getting rid of the evil of slavery is one of the extremely few things I would even consider worth "interpreting" the Constitution is such a way for).

Lochner - uh, don't remember which issue that was, sorry.

" ook, as far as policy goes, the bulk of such abortions are done to protect the life or health of the mother.

(Emphasis added.) That is, the bulk of partial birth abortions."

Again, complete BS. The vast majority of partial birth abortions could instead fo C-sections. At that point, there is essentially no "health of the mother" reason to KILL the child (and if you've ever seen a partial-birth abortion, it most certainly is a person by then). I have a friend in her late 20's who was born weighing less than a pound... that would be over 25 years ago, and she survived and it a productive member of society. Some would still die - "some" "dying" is much better than "all" "being brutally dismembered".

By the way, I don't think that most peoplpe who disagree with me, even on something like this issue about the ACLU, are "insane", at least not any more than anyone else (that's a joke - laugh, already). I do think that some of them are evil (the ones who do it knowingly), while the rest are generally well-intentioned but either misinformed, naive, or value things differently than myself (that last is especially true when it comes to resource allocation). I have been in such situations myself, so I know that no insanity is required.
1.10.2006 12:50am
Allen Asch (mail) (www):
The claim that the ACLU is anti-religion is a common misconception intentionally spread, in my opinion, by those who can only gain support by obfuscating the difference between opposing government endorsement of religion and opposing all religion.

For just a few examples of the ACLU fighting for the rights of Christians, see this link:

The ACLU Fights for Chistians

Allen Asch
1.10.2006 12:59am
Noah Klein (mail):
Deoxy:

You are forgeting, like everyone else, the NINTH AMENDMENT. You know, the one that says "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." That's the point. The Supreme Court has not become a legislature. It has not made law or pull rights out of thin air. It RECOGNIZED rights that people already had. The right to privacy, the right to be secure in your body, the right to engage in consensual sex and others. How is this not the case?

Noah
1.10.2006 2:59am
Noah Klein (mail):
Deoxy:

Lochner is the case where the court used the 14th amendment to incorporate (might not be the right word) the bill of rights to apply to the state. I'm pretty sure it was a free speech case.

Noah
1.10.2006 3:01am
mikem (mail):
"The ACLU has on balance been a strong supporter of free speech claims."
I find this an incredible statement. Speech codes and verbal harassment regulations have become almost commonplace on campuses, often with active ACLU chapters on campus refusing to take action against them.
If the ACLU went after speech codes the way they go after public displays of religion (like tiny crosses on a seal), then I would have more respect for their claim as civil liberties protectors.
Where were the law professors when these offensive restrictions on speech were debated and implemented?
1.10.2006 4:49am
Medis:
mikem,

The ACLU has a national policy statement against campus speech codes. As I recall, it has filed successful campus speech lawsuits in Michigan, Wisconsin, Virginia, and Maryland (and maybe more).
1.10.2006 10:33am
Clayton E. Cramer (mail) (www):
Decius writes:


What this boils down to is that you want to impose your perspective on other people who don't agree with it. You don't like Constitutional guarantees of things like freedom of speech, and the people who defend them, because they get in the way of your ability to use the law to control other people, specifically what other people think about.
Decius demonstrates his inability to read. No, my point was that the majority no longer rules in the United States. I don't see any good purpose to laws prohibiting what adults do in private (although liberals do, as long as those laws are regulating business activity, not sex), and I would not vote for them. But that doesn't make them unconstitutional. Imagining your preferences are in the Constitution is a great way for a powerful minority to get what it wants, but that's hardly correct.
1.10.2006 11:11am
Clayton E. Cramer (mail) (www):
Andy writes:


Actually, no. The ACLU's argument in Limon wasn't based on wanting to legalize adult-child sex, but rather that a Kansas law that provides for lesser penalties to heterosexual relations between an 18-year-old and a juvenile but does not provide the same allowances for homosexual relations within that same age group.
I know what their argument was about, and they could have stopped at equal protection without getting me upset. If I had my way, the "Romeo and Juliet" exception wouldn't have been there at all, and quite a number of law enforcement groups argued against the exception at the time the law was passed.

Remember that the minor wasn't being prosecuted in Limon. It was the adult. So why is this supposed liberty interest of relevance?

The problem is that by casting this in terms of a liberty interest for a minor to have sex with adults--and then citing precedents where the ACLU does not admit a legitimate state interest in regulation--the ACLU was trying to set up an opportunity for constitutionalizing sex with minors.
1.10.2006 11:15am
Clayton E. Cramer (mail) (www):
Noah Klein writes:


Lochner is the case where the court used the 14th amendment to incorporate (might not be the right word) the bill of rights to apply to the state. I'm pretty sure it was a free speech case.
Wrong on all counts. Lochner imposed a right to contract on the states striking down a state law regulating working conditions for bakers.
1.10.2006 11:17am
Public_Defender:
Romeo and Juliet laws are critical to taking sex offenses seriously. If an 18 year-old can be labeled a sex offender (with the draconian implications that entailes) for having consensual sex with a 16 year-old, (or even a 17 year-old with a 15 year-old) then we are lumping the unwise and foolish in with the evil.

Is it "mainstream" to want to convict a 17 or 18 year-old of rape for consensual sex with someone only two years his junior? You are putting them in the same league as an 18 year-old who forces another 18 year-old to have non-consensual sex.

There are enough forces out there pushing for increasing punishment and sanctions for sex offenders (even some, as Cramer shows, who want to criminalize ordinary teenage carelessness), that I'm glad someone is out there pushing back on the other side.

The ACLU shouldn't win all its fights, but the justice system works best when there are vigorous advocates on all sides. The ACLU, as well as conservative/libertarian groups like the ACLJ and the Institute for Justice, are a critical part of that system.
1.10.2006 11:32am
Clayton E. Cramer (mail) (www):
Clearly, some of you don't know how to read. Someone insisted that there was no evidence that Christians "were on the run" with respect to political power. I gave a list of examples demonstrating otherwise, and observed:


Now, if you are a liberal, you doubtless like all of these public policy changes. But don't tell me that Christians (being only an insignificant 80% of the population) aren't in declining power.
Bob Van Burkleo, along with a number of others, demonstrates that he doesn't know how to read:

And these are all totally non-mandatory. No woman must have an abortion. Obviously no one must participate in homosexual sex.
My point was to demonstrate that majority rule doesn't apply.

I don't see any good reason for the government to prohibit consenting adults doing what they want in private (although liberals believe it should--as long as it isn't sex that is being regulated). I am also reluctant to prohibit abortion in the first trimester, at least partly because such a law is effectively unenforceable. But our government isn't a list of preferences; it is a mechanism by which the majority makes laws, with a few exceptions carved out by the federal and state constitutions. The ACLU has imagined a Constitution completely separated from the document and its history.


And giving all citizens equal reasonable access to government features, who could be against that?
You would be against it, if the rules that the ACLU comes up were applied truly equally. Why are convicted felons prohibited from voting? From owning guns? From holding certain professional licenses? Sounds like an equal protection violation to me!

Why do children have less rights than adults? Why can't they buy alcohol and cigarettes? Why can parents direct what kids can do (within legislatively established limits)? Sounds like an equal protection violation to me!

The fact is that "equal protection" has never meant that every class is equal before the law. Strict scrutiny imposes it for race, largely because the courts were reluctant to strike down large numbers of laws that treat different classes of people differently, and with good reason. So they came up with a mechanism to work around that the segregationists had the best lawyers for many years.

You want homosexuals as a class to be treated the same as heterosexuals. In a lot of areas of the law, a thin majority agrees with you. In a few areas (such as marriage), it is only a significant minority that believes in equal protection. But liberals aren't going to let themselves be hampered by being in the minority on this--they just impose their will through the courts.
1.10.2006 11:34am
Clayton E. Cramer (mail) (www):
Public Defender writes:


Romeo and Juliet laws are critical to taking sex offenses seriously. If an 18 year-old can be labeled a sex offender (with the draconian implications that entailes) for having consensual sex with a 16 year-old, (or even a 17 year-old with a 15 year-old) then we are lumping the unwise and foolish in with the evil.
It isn't a matter of evil. It is a matter of a minor lacks legal responsibility for his actions. If my minor son or daughter gets into an accident, gets a body piercing, or commits an act of vandalism, I am responsible.

Sex is a pretty serious matter, in terms of both physical health consequences and emotional consequences. That's one reason why even the 16 year old with the 18 year old is prohibited.

Of course, the objective of blurring the lines is to make it easier to rationalize the 19 year old with the 13 year old, and the 46 year old with the 12 year old.
1.10.2006 11:40am
Clayton E. Cramer (mail) (www):
Noah Klein writes:


These rights that people say the Court has confirmed like the right to privacy and abortion, the right to homosexual sex, the right to decide how you live your life are all encompassed in the ninth amendment.
If the Ninth Amendment includes all these rights, why is it that no state at the time recognized them? For example, sodomy was a felony in every state in 1789. Abortion past "the quickening" was a criminal offense (at least according to Blackstone).

If you want to argue that the Ninth Amendment reserved rights (and I agree that it does), then what rights? If something was lawful in every state in 1789, I think you could make the case (absent other evidence) that this was a reserved right. Marijuana and opiates, for example, weren't regulated at all in 1789. Gun ownership (at least, if you weren't black) wasn't regulated in 1789.

What a married couple did in private was outside the law's purview, because they were legally one person; hence the prohibition on requiring spouses to testify against each other. So you could make the argument that whatever form of sex that a married couple had is protected under the Ninth Amendment. Of course, the same argument could perhaps be advanced (with a little twisting and torture) to justify that spousal abuse is protected under the Ninth Amendment.

But if you are going to use the Ninth Amendment as a defense, you need to take it seriously. The Ninth Amendment was a limitation on the federal government--not on the states, and there is no evidence that the authors of the 14th Amendment intended to impose the Ninth onto the states by that process--in fact, the evidence suggests that they understood that only the first eight amendments of the Bill of Rights would be imposed on the states.
1.10.2006 11:50am
Clayton E. Cramer (mail) (www):

The ACLU shouldn't win all its fights, but the justice system works best when there are vigorous advocates on all sides.
The lawyer's job is to defend the interests of his client (as long as he doesn't lie, such as happened in Lawrence). The judge's job is to give a decorous version of a Bronx cheer when the arguments are wrong. The problem is that the federal judiciary seldom tells the ACLU when it is wrong.
1.10.2006 11:52am
mikem (mail):
Medis: A position paper that is ignored by the National ACLU as well as the vast majority of local ACLU chapters is not sufficent to remove responsibility. I could post a notice at my store that I oppose racial discrimination against blacks, but if half the malls I operate in have sgns up, No Blacks Allowed, and if only a few of my local stores protest then I cannot claim to oppose discrimination with a straight face. I certainly cannot claim to be an aggressive and objective defender of civil liberties.
1.10.2006 12:23pm
Public_Defender:
The problem is that the federal judiciary seldom tells the ACLU when it is wrong.
Then your real gripe is with the federal judiciary (especially that pro-NAMBLA, porn-loving, God-hating, flaming lefty Clarence Thomas), not the ACLU.
1.10.2006 1:32pm
aa (mail):
Mr. Cramer,

The ACLU gets to choose its arguments, and, for economic reasons will only fight cases that it can win. Public defenders and anyone doing criminal defense does not have this luxury. The government doesn't have the latitude that the ACLU does in selecting controversies to pursue as many decision-makers are elected and choose to pursue criminal or civil matters for political reasons, or a government decision-maker might feel at least some moral duty to expend some resources to defend a statute that he knows the courts will find to be unconstitutional.

Therefore, just like the government will, more often then not, secure a conviction in a criminal case, the ACLU will, when it actively pursues a matter in court, win! There is no need to give a "Bronx cheer" to arguments that one judge finds unavailing, because another judge might agree, and even if a judge thinks that Supreme Court precedent dictates one result, the precedent might change.

And besides, what do you mean by "Bronx Cheer." Are you the kind of lawyer that things that there must be some insult.

Now, I read every brief written by the ACLU in all courts of appeal (and any opposition to it). They are on the web. Likewise, I read all court opinions that might result from them. I hope you do, too, so you can provide specifics. If you don't, you are not advancing the conversation and you are just pounding the table. I cannot overstate the importance of reading the actual briefs of a party before commenting on their positions. Not doing so, does severe damage to our system of justice. So, if you can point me to a position taken in a brief by the ACLU, in which the ACLU ultimately lost, that you find to be incorrect, then, by all means, go ahead.
1.10.2006 1:43pm
Medis:
mikem,

OK, so your point is that even though the ACLU has in fact taken a stand against campus speech codes, and even though it has in fact filed suits against some campus speech codes (and won), you think local chapters are refusing to file similar suits in other cases.

First, do you have any evidence for that claim?

Second, that actually sounds just like the religion cases to me. Lots of people complain about lots of potential Establishment Clause violations, but they do not always get the help of the ACLU. Indeed, as aa points out, the ACLU does have limited resources, so one can't expect them to file every possible lawsuit.

On a more general point:

I also find it interesting when people claim "Christians" are being discriminated against and then point out that some people who are Christians are not getting their way. In my experience, however, Christians in America are not monolithic in their views--eg, there are Christians who support abortion rights, the inclusion of pornography within the scope of the First Amendment, and so on. So, it is only SOME Christians who are not getting their way, because OTHER Christians support these results.

In other words, when these people are complaining about Christians not getting their way, they really mean "Christians like me", not "Christians in general".
1.10.2006 2:29pm
Bob Loblaw (www):
Medis:


In other words, when these people are complaining about Christians not getting their way, they really mean "Christians like me", not "Christians in general".
I believe they are only referring to True Christians(TM)
1.10.2006 2:50pm
Kurt:

I could post a notice at my store that I oppose racial discrimination against blacks, but if half the malls I operate in have sgns up, No Blacks Allowed, and if only a few of my local stores protest then I cannot claim to oppose discrimination with a straight face.


That's a terrific analogy. Because, as we all know, the ACLU owns and operates colleges across the country, and has taken affirmative steps to implement speech codes at these schools, making it just like your scenario. Nice work.
1.10.2006 3:00pm
NickM (mail) (www):
JosephSlater - the case was the Robert Alton Harris case. As for reputable citations, try Charles Fried, Impudence, 1992 Sup. Ct. Rev. 155 (exact page citation not available to me currently). There are plenty more.

In response to Noah, I will second Clayton's following remarks: "If you want to argue that the Ninth Amendment reserved rights (and I agree that it does), then what rights? If something was lawful in every state in 1789, I think you could make the case (absent other evidence) that this was a reserved right."

As far as the L.A. seal goes, the ACLU never sued. They threatened to sue, and the L.A. County Board of Supervisors voted 3-2 to spend taxpayer money to change the seal rather than fight (a fight which, considering the Supreme Court's Ten Commandments monument case, the County would have very likely won).

Nick
1.10.2006 3:31pm
Clayton E. Cramer (mail) (www):

Then your real gripe is with the federal judiciary (especially that pro-NAMBLA, porn-loving, God-hating, flaming lefty Clarence Thomas), not the ACLU.
It is certainly true that just because the ACLU presents a ridiculous claim, the federal courts aren't required to buy into it. But that doesn't mean that the ACLU is off the hook for pursuing its agenda of leftist political change while pretending to be a civil liberties union.
1.10.2006 3:39pm
Clayton E. Cramer (mail) (www):
aa writes:


The ACLU gets to choose its arguments, and, for economic reasons will only fight cases that it can win. ... The government doesn't have the latitude that the ACLU does in selecting controversies to pursue as many decision-makers are elected and choose to pursue criminal or civil matters for political reasons, or a government decision-maker might feel at least some moral duty to expend some resources to defend a statute that he knows the courts will find to be unconstitutional.
You've presented a very strong argument for why the ACLU didn't need to defend NAMBLA in a civil suit. And yet they have chosen to do so. That tells me quite a bit about the organization's goals.


And besides, what do you mean by "Bronx Cheer." Are you the kind of lawyer that things that there must be some insult.
There are an awful lot of cases that come to the courts for which there is a serious question--you can at least see why honest people can differ as to where fault lies. For example, I can see why people differ on the question of parental notification for a minor's abortion; there are arguments on both sides of such a legal requirement. I can see why people differ on the question of whether a state should recognize same-sex marriage; I don't think the government should recognize it, but there are at least plausible, not overtly ridiculous arguments advanced by proponents of having the legislature pass such laws.

There are questions, however, that are so absurd that only a lawyer could find them not laughable--or worse--such as the question of whether virtual child pornography is protected by the freedom of the press provision of the First Amendment. There aren't a lot of cases like this, but when I see the ACLU on the wrong side--and worse, the federal courts buy into the argument--I think there comes a point where lawyers should have to fear sanctions for wasting the court's time, and that of opposing counsel. That includes the "negligent firearms marketing" lawsuits and the lawsuits against fast food chains. I would also include lawsuits filed against tobacco companies on behalf of people who started smoking after the Surgeon General required warning labels.

You are going to defend these lawsuits, of course. Lawyers, after all, make their money from either winning these absurd suits, or defending someone, so they have a financial interest in these dignified forms of extortion. But imagine what you reaction would be if there were any federal judges prepared to entertain the equivalent suits on the other side--instead of fining the plaintiffs for bringing them:

1. The Rev. Fred Phelps sues GLAAD for promoting homosexuality, to the moral downfall of young people.

2. The John Birch Society files suit against George Soros for promoting Communism.

3. The National Rifle Assocation files suit against the Brady Campaign, alleging that their lobbying efforts have caused tens of thousands of deaths by victims who were unable to defend themselves in places with restrictive gun control laws.

4. Concerned Women for America files suit against a movie studio for making movies that promote sexual promiscuity, causing an increase in STDs and unplanned pregnancies. We'll call it "negligent marketing."

You would be rightly angered about these suits, and as much sympathy as I might have for #3 and #4, I would recognize that they are an abuse of the process. Yet equivalently absurd suits by the left never get sanctioned.
1.10.2006 3:55pm
Clayton E. Cramer (mail) (www):

So, if you can point me to a position taken in a brief by the ACLU, in which the ACLU ultimately lost, that you find to be incorrect, then, by all means, go ahead.
The problem is not that they lose when they are wrong, but they often win. The Lawrence case is a good example. The claims that laws specifically prohibiting homosexual sex are modern, dating from the 1930s, were easy to demonstrate to be false. I had no problem finding a number of statutes from the colonial period that specifically prohibited just homosexual sex.

Remember that judges in highly political cases don't seek truth; they figure out what result they want, and then look for a rationalization and collection of precedents to support that result. That's part of why in Lawrence they felt a need to go looking at foreign court precedents, because they knew that they didn't have a ghost of a chance of finding American precdents.

This isn't limited to the left, of course. Conservative judges do this as well, and while I don't get quite as upset by it (because I like the results, if not the methods), it is still a bad practice, because it encourages a callous disregard for truth and law.
1.10.2006 4:00pm
JosephSlater (mail):
NickM:

I ran the following search term on the Westlaw general database for law review and law journal articles:

(charles /2 fried) & (alton /2 harris) & ACLU

That should get any article in which Charles Fried discusses Alton Harris and the ACLU. I got back two articles, neither authored by Fried, and neither (per quick check) discussing what you claimed. Nor could it find any article with the cite 1992 Sup. Ct. Rev. 155.

Obviously I didn't spend a lot of time on this, but if you have a valid cite to this or any of the "plenty of other" cases in which a judge just takes the ACLU's word for something, please pass them on.
1.10.2006 4:04pm
Clayton E. Cramer (mail) (www):

I also find it interesting when people claim "Christians" are being discriminated against and then point out that some people who are Christians are not getting their way.
Christians are discriminated against pretty regularly; Professor Volokh pointed to one such case in Kentucky a while back where a woman was fired from her job for wearing a cross.

The biggest problem that I have with the ACLU isn't so much their anti-Christian bias, but that they are promoting an ahistoric understanding of the establishment clause. The idea that the establishment clause was intended to create "neutrality between religion and irreligion" is a cornerstone of the ACLU's litigation efforts, but it is simply false. The establishment clause was intended to create neutrality between Christian denominations. In practice, Americans have broadened their definitions of acceptable religions over time to accept not only Catholics, Jews, and even Muslims, but the notion that any of the Framers sought "neutrality between religion and irreligion" is clearly false.

Interestingly enough, one of the precedents that underlies much of the ACLU's definition is Reynolds--which upheld about as clearly a form of religious discrimination as there is written into federal law, the ban on polygamy in the territories. The Court was unwilling to admit that the ban on polygamy was because there was no room for Mormon practices within a Christian nation. A precedent that underlies the ACLU's ideas is one that they would have filed a brief against, had they been around.
1.10.2006 4:08pm
Public_Defender:
It is certainly true that just because the ACLU presents a ridiculous claim, the federal courts aren't required to buy into it. But that doesn't mean that the ACLU is off the hook for pursuing its agenda of leftist political change while pretending to be a civil liberties union.
No more than the ACLJ and Institute for Justice are "off the hook" for pursuing their conservative/libertarian agendas while "pretending to" that they support "justice."

I'm being sarcastic, of course. It's unfair and wrong to argue that the ACLJ and IJ are "pretending" to argue for justice because I disagree with many of their cases. Just like it's unfair and wrong to argue that the ACLU is "pretending" to support civil liberties because you disagree with their definition of civil liberties.

Moreover, numerous conservative legal groups have entered the fray to argue the positions you espouse, so the arguments are well represented in the legal system (probably better represented than in your comments on this blog). As a lawyer who believes in the adversarial system, I think that's a very good thing.
1.10.2006 4:21pm
Medis:
Clayton,

I realize that you disagree with the ACLU's interpretation of the Establishment Clause. But clearly you are also aware that your contrary view of the Establishment Clause is not the only view of the Establishment Clause, and indeed is not the dominant view of the Establishment Clause in the federal judiciary, nor has it been for quite a while now.

Which doesn't mean you are wrong, but it does mean your claim that the ACLU is composed of lunatics because they don't agree with you--and because they win a lot of cases when you think they should lose--is more than a little silly.
1.10.2006 4:32pm
JosephSlater (mail):
Public_Defender. You're making the same mistake I was, in grossly underestimating the magical powers of the ACLU. But I have now learned from this thread that showing your ACLU card to judges makes them ignore facts, evidence, opposing arguments, and their basic duty to the law and constitution. This happens with great frequency, and even otherwise conservative judges have been blinded by them.

This thread has definitely convinced me to join the ACLU, so I can get in on this power.
1.10.2006 4:38pm
mikem (mail):
"...and has taken affirmative steps to implement speech codes at these schools, making it just like your scenario."
I'd appreciate it, Kurt, if you would not ascribe a scenario to me that I did not paint. I didn't even come close to implying that the ACLU "implements", let alone takes "affirmative steps" to implement speech codes, just as I did not say that the store owner implements racial discrimination. In fact I said the opposite. That he does not protest. I said that the ACLU, as a whole, allowed and continues to allow speech codes and "verbal harassment" regulations by not making a serious effort to oppose them. They do not aggressively go after universities who offend free speech with such obnoxious (especially for a university) restrictions on opinion. Other organizations like FIRE are left to undo the final results of the "free speech movement" founders. They post a position paper, yes. Is that what the ACLU does on other issues of importance to them? Or do they publicize and threaten lawsuits? They have a very few chapters who buck the general trend, but do you seriously think that the ACLU is protecting free speech on campus based on a position paper and the commendable actions of a small minority of their chapters? If so, why the proliferation of speech codes etc.? Why do we even need an organization like FIRE if the ACLU is protecting free speech like it protects California residents from tiny crosses on county seals?
That's all I ask, that the ACLU aggressively fight something that is an abomination on campus with something approaching the same vigor and publicity.
Medis: What proof do you mean? That an individual ACLU chapter has "refused" to take action? No, of course not. How could I know how decisions are made in their chapters. Maybe they have had exams for the last 15 years. Or do you mean that speech codes and verbal harassment regulations are a serious problem on campus?
1.10.2006 4:40pm
Jon Rowe (mail) (www):
-- The idea that the establishment clause was intended to create "neutrality between religion and irreligion" is a cornerstone of the ACLU's litigation efforts, but it is simply false. The establishment clause was intended to create neutrality between Christian denominations. --

This is simply not true. The text of First Amendment says nothing of "Christian" but rather uses the term "religion" in a generic sense. And while I'm sure there were some who assumed "religion" meant "Christian" (even though the text doesn't say that) Jefferson, Madison, Adams, Washington, and the most important framers and ratifiers knew that "religion" meant "religion." And that for instance, Islam, Hinduism, Judaism, etc. are all "religions."

"In practice, Americans have broadened their definitions of acceptable religions over time to accept not only Catholics, Jews, and even Muslims"

Does this claim impact on whether Catholics, Jews, and Muslims have equal rights under the religion clauses now but didn't when the Constitution was originally ratified? What about other religions that aren't Protestant, Catholic, Jewish or Muslim?

And if Catholics, Jews, and Muslims didn't have religious rights under the original constitution, how can they have rights now if the document's meaning doesn't evolve?
1.10.2006 4:54pm
Public_Defender:
Public_Defender. You're making the same mistake I was, in grossly underestimating the magical powers of the ACLU. But I have now learned from this thread that showing your ACLU card to judges makes them ignore facts, evidence, opposing arguments, and their basic duty to the law and constitution. This happens with great frequency, and even otherwise conservative judges have been blinded by them.
You've got me there. I bet when Justice Thomas' papers are released, we'll discover that he has the ACLU ghost-write his opinions and that his clerks are all double-super-secret ACLU members who monitor his every word.

It could be even worse. Maybe the ACLU is using secret operatives to post emotional, quasi-factual attacks on itself in order to make the organization's critics look bad. I wouldn't put it past those weasels.

Oh, and the ACLU is the cause of the common cold.
1.10.2006 5:21pm
Clayton E. Cramer (mail) (www):
Public Defender writes:


I'm being sarcastic, of course. It's unfair and wrong to argue that the ACLJ and IJ are "pretending" to argue for justice because I disagree with many of their cases. Just like it's unfair and wrong to argue that the ACLU is "pretending" to support civil liberties because you disagree with their definition of civil liberties.
I disagree with falsification of history to achieve political ends through the courts. But how else could your side win Lawrence, except by falsification of history?

Medis writes:


I realize that you disagree with the ACLU's interpretation of the Establishment Clause. But clearly you are also aware that your contrary view of the Establishment Clause is not the only view of the Establishment Clause, and indeed is not the dominant view of the Establishment Clause in the federal judiciary, nor has it been for quite a while now.
Yeah, and for more than 50 years, "separate but equal" was the law. Accepted and factually wrong is still wrong.

Which doesn't mean you are wrong, but it does mean your claim that the ACLU is composed of lunatics because they don't agree with you--and because they win a lot of cases when you think they should lose--is more than a little silly.
I was referring to their support for virtual child pornography as protected freedom of the press when I called them "lunatics." And that was probably incorrect. The alternative is that they really want to encourage pedophilia by keeping virtual child porn legal. Of course, that fits with other parts of their agenda, such as Constitutionalizing adults having sex with minors.

By the way, I know that many of you think it is so cool to Constitutionalize everything--to make everything that you want protected by the Constitution. The experience of states with constitutional initiative should cause you to pause in your enthusiasm. There are unquestionably rights so fundamental that you don't want them subject to the whim of the majority--but what happens when you turn something with difficult edge cases into a Constitutional right? The legislature can't adjust the law to handle cases that no one thought about previously.
1.10.2006 5:24pm
Clayton E. Cramer (mail) (www):
Jon Rowe writes:


This is simply not true. The text of First Amendment says nothing of "Christian" but rather uses the term "religion" in a generic sense. And while I'm sure there were some who assumed "religion" meant "Christian" (even though the text doesn't say that) Jefferson, Madison, Adams, Washington, and the most important framers and ratifiers knew that "religion" meant "religion." And that for instance, Islam, Hinduism, Judaism, etc. are all "religions."
And aside from a relatively small number of Jews in a few cities, how many non-Christians were there in America at the time? When the Constitution was up for ratification, Massachusetts opponents ridiculed that at some future time, a Muslim could be elected President, because of the "no religious test" clause.

America today is not the nation it was in 1789.


Does this claim impact on whether Catholics, Jews, and Muslims have equal rights under the religion clauses now but didn't when the Constitution was originally ratified? What about other religions that aren't Protestant, Catholic, Jewish or Muslim?
Which rights do you mean? The guarantees of the First Amendment specify that there is to be no establishment of religion. If Congress wasn't allowed to establish the Episcopalian Church, I hardly see that it could establish Islam. I am hard-pressed to see that the exercise clause is much impacted by this.

There is a separate question of what "free exercise" includes. I think you could make an originalist claim that Santeria's sacrificial slaughtering of animals isn't protected, and ditto for Muslim polygamous marriage. (You might persuade me otherwise, too.) Whether the state or federal governments should prohibit such practices is a separate question.

And if Catholics, Jews, and Muslims didn't have religious rights under the original constitution, how can they have rights now if the document's meaning doesn't evolve?
Again, you need to define "religious rights." In any case, all sorts of religions are protected now because the majority agrees that they should be. This didn't take a lawsuit, either.
1.10.2006 5:31pm
Clayton E. Cramer (mail) (www):

In any case, all sorts of religions are protected now because the majority agrees that they should be. This didn't take a lawsuit, either.
Just occurred to me--the Jehovah's Witnesses flag cases--that took a lawsuit. Even then, while JWs have some peculiar beliefs, they aren't particularly out of the mainstream by comparison to 1789.
1.10.2006 5:38pm
Medis:
mikem,

You originally wrote: "Speech codes and verbal harassment regulations have become almost commonplace on campuses, often with active ACLU chapters on campus refusing to take action against them." So, yes, I wanted proof of what you were claiming.

In general, to sum up: the ACLU has taken a public stand against campus speech codes. It has in fact brought successful suits against campus speech codes. But because you think the ACLU could be doing more about campus speech codes (in some unspecified cases), you think the ACLU is "refusing to take action against them".

I'm not sure how you think that makes sense in a world of limited resources. And incidentally, if there are other groups like FIRE willing to take on that issue, then it obviously makes more sense for the ACLU to direct its own resources elsewhere--not that you have actually shown they are doing any such thing.

Clayton,

You say: "The alternative is that they really want to encourage pedophilia by keeping virtual child porn legal."

Seriously, do you think this helps your credibility? You can say they are wrong about whether virtual child pornography is protected by the First Amendment without saying that they want to encourage pedophilia. And doing otherwise makes you sound like a person who is not worth listening to because he apparently cannot even understand the ACLU's actual views.
1.10.2006 5:59pm
Clayton E. Cramer (mail) (www):

You say: "The alternative is that they really want to encourage pedophilia by keeping virtual child porn legal."

Seriously, do you think this helps your credibility? You can say they are wrong about whether virtual child pornography is protected by the First Amendment without saying that they want to encourage pedophilia. And doing otherwise makes you sound like a person who is not worth listening to because he apparently cannot even understand the ACLU's actual views.
If a conservative organization equivalent to the ACLU were filing suits to severely regulate abortion, while claiming that it did not want to ban abortion, would you take them seriously?

So why do you believe the ACLU when it calls minors having sex with adults a "due process liberty interest" (a claim not required for their legitimate desire for equality of treatment of homosexuals) and defends NAMBLA on a civil suit alleging promotion of rape?
1.10.2006 6:03pm
Clayton E. Cramer (mail) (www):
And one more item: remember that for some liberals who comment here, adults raping seven year olds isn't rape, but "intergenerational sex."
1.10.2006 6:06pm
JosephSlater (mail):
Clayton:

Why do you say the poster who made the "intergenerational sex" comment is a liberal? Is that your only evidence for your claim about "some liberals who comment here"? I saw people identified as liberals condemn the claim you linked, but no evidence that the poster who made it was a liberal.
1.10.2006 7:27pm
Eugene Volokh (www):
Clayton writes:
There are questions, however, that are so absurd that only a lawyer could find them not laughable--or worse--such as the question of whether virtual child pornography is protected by the freedom of the press provision of the First Amendment. There aren't a lot of cases like this, but when I see the ACLU on the wrong side--and worse, the federal courts buy into the argument--I think there comes a point where lawyers should have to fear sanctions for wasting the court's time, and that of opposing counsel.


Can you please clarify this for me? It sounds to me like you're suggesting that when "the federal courts buy into the [ACLU's 'laughable'] argument" that "virtual child pornography is protected by . . . the First Amendment" -- that is to say, when the ACLU wins the case -- the ACLU "should have to fear sanctions for wasting the court's time, and that of opposing counsel." Wouldn't it be a little odd for lawyers to fear sanctions when they win a case, because presumably the sanctioner thinks that their argument, while a winning argument, is "laughable" and a "wast[e of] the court's time"? I take it that you can't mean that -- but what then do you mean by the quote I reproduce above?
1.10.2006 7:42pm
Bob Loblaw (www):
EV-

Can you please clarify this for me?
In all honesty, I really don't think he can, given the tone and thought process of all of his previous posts. I'm really pretty surprised that you are taking him seriously on any of this. I recognize you have acknowledged his thoughfulness on other areas of debate, but here he seems to be possessed by a demon or something, and incapable of rational thought.
1.10.2006 7:57pm
Noah Klein (mail):
Nick and Clayton:

Sorry I have been away all day I have been posting on another thread. You say that I am expanding rights beyond what they were legislatively considered at the time. I say yes. Firstly, you demonstrated that this conservative argument to the ninth amendment. Secondly, you say it yourself:

"America today is not the nation it was in 1789."

It is not the nation it was in 1789. It has grown, changed and evolved. And so should our understanding of the document that founded. But even ignoring broad vs. narrow construction of the constitution. The point behind the ninth amendment was to defend the rights of citizens that were not enumerated. It was not to say that they legislative decree on all issues in 1789 as it relates to human freedom are thus sacrosanct. As this nation has grown, so has understanding of the law.

You say that freedom, as defined by the ninth amendment, must only be what it was considered in 1789, but that would mean that a variety of freedoms that exist today would not exist, because they would not fit into that 1789 understanding of the ninth amendment. Sodomy was illegal and of course so were gay marriages. But Clayton if our understanding of the Establishment Clause can evolve than why not understanding of the ninth amendment.

Finally, you point out that abortions were only illegal at the time after "the quickening," does that mean that abortions in the first trimester must be a freedom people have under the ninth amendment?

Noah
1.10.2006 8:03pm
Noah Klein (mail):
Clayton:

I'm sorry for getting Lcohner wrong. I mix that up all the time.


Noah
1.10.2006 8:10pm
mikem (mail):
I don't know if I should laugh or cry.
"I'm not sure how you think that makes sense in a world of limited resources."
Enough resources to launch a public campaign to marginalize the Boy Scouts and keep tiny crosses off county seals, but not enough to do the same to defend free speech on campus. The hypocrisy.
"And incidentally, if there are other groups like FIRE willing to take on that issue, then it obviously makes more sense for the ACLU to direct its own resources elsewhere..."
Sure, why should the ACLU waste limited resources on free speech restrictions when someone else will eventually, sooner or later, try to undo the damage?
And if the ACLU thinks it's resources are better spent on other issues, then it can stop claiming to be a civil liberties defender. If they're not actively defending something as basic as free speech on campuses, they have no claim to the title.
...not that you have actually shown they are doing any such thing."
I think you are just being cute (I'll give you that much credit) but since you keep thumping your chest about proof I'll cite every single speech code and verbal harassment regulation that the ACLU and their chapters have allowed to persist on campus without protest or threat of lawsuit. Where is the national campaign? Where is the outrage? Where are the lawsuits to match the scope of the problem?
Like any political or idealogical organization the ACLU can claim some civil liberties victories, but it is not an unbiased protector of everyone's or all civil liberties.
1.10.2006 8:54pm
Jon Rowe (mail) (www):

-- When the Constitution was up for ratification, Massachusetts opponents ridiculed that at some future time, a Muslim could be elected President, because of the "no religious test" clause. --

Exactly, not only did the friends of religious neutrality (our founders) know that the word "religion" applied to more than just the Christian sects, so too did the enemies who opposed the unamended Constitution because they knew Art. VI would permit the election of those with unorthodox religious beliefs or complete lack thereof.

What I was getting at was you wrote: "The establishment clause was intended to create neutrality between Christian denominations." This is a different claim than simply the EC forbids the "Establishment of a national Church." Government can still grant Free Exercise, have no Established Church, but still in some way privilege one Christian sect over another. The word "neutrality" seems to raise a non-discrimination principle (something like equality). Various scholars have noticed that the EC has often vindicated "equality" claims. And this shouldn't surprise us given that the liberty and equality are the twin pillars of (small l) liberalism (and Free Exercise obviously vindicates "liberty").

My point was whatever religious rights are secured in a constitutional sense (that's the $1,000,000 question) apply equally to not just "the Christian sects," but to all religions. So if "religious neutrality" is a valid constitutional principle, it is not simply neutrality "between Christian denominations," but religious neutrality period.
1.10.2006 8:58pm
Deoxy (mail):
"You are forgeting, like everyone else, the NINTH AMENDMENT. You know, the one that says "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." That's the point. The Supreme Court has not become a legislature. It has not made law or pull rights out of thin air. It RECOGNIZED rights that people already had. The right to privacy, the right to be secure in your body, the right to engage in consensual sex and others. How is this not the case?"

That is stark raving insane: you are declaring that things NOT in the Constitution are ALL RIGHTS. THAT IS IMPOSSIBLE.

Example: The "right to privacy". There is also nothing in the Constitution about whether or not we have a right to know the gender of the person we are talking to, therefore, I demand a "right to know what your gender is", and I cite the 9th amendment. Yes, that's silly, but you get the point. You can't just go making up new rights; which ones are "real" and which ones aren't? The so-called "right to privacy" would be MUCh better served by strong property rights, which would have other beneficial effects as well.

"It is not the nation it was in 1789. It has grown, changed and evolved. And so should our understanding of the document that founded."

No, it should NOT. I will reiterate and give you another chance to actually read and comprehend:

If the words mean whatever the 9 Justices WANT them to mean, then they have NO MEANING AT ALL. They can simply declare that "freedom" means "slavery" and we are all to work as slaves of the state, and that is "freedom". The Constitution must NOT CHANGE except by Amendment, or one will be unable to predict if one's behaviour is legal or not. THAT IS CRAZY.
1.11.2006 12:35am
Noah Klein (mail):
Deoxy:

The reading of what the amendment says is not that hard. It says clearly that just because we listed rights does not mean those are the only rights guarranteed to the people. Now this does not say that every possible suggestion for a right is a right. There have been many theories posited by many different philosophers, lawyers and legislators, presidents and political scientists. My favorite theory on how far the rights of the individual go as far as the other person's nose (paraphrase of John Stuart Mill). Thus you have right to ask me my gender. I would think my name "Noah" (you know the guy with the boat) would be a hint, but whatever. You just cannot compel me to answer.

This interpretation of the amendment is not crazy or without or a ridiculous reading of the constitution. Heck, the entire Libertarian party and philosophy is base on the 2nd, 9th and 10 amendments and an originalist reading of the constitution. You may think there wrong, but they are pretty sane. While the court has not yet gone as far as position or even farther to the libertarian position. It has generally recognized, with the privacy right and one or two others that not all the first eight amendments are not the exclusive rights granted to the people. Thus they haven't acted as a legislature nor have they pull rights out of thin air. Generally, the Supreme Court's theory is that the rights that are in the document, such as 4th "secure in persons, houses and papers." To disagree with this is logical. I don't agree with your opinion, but it is an opinion. To call this interpretation crazy is just a little extreme.

Do you think I am wrong? Can you read the ninth as saying something other than what I say?


Noah
1.11.2006 12:54am
Medis:
Clayton,

You say: "If a conservative organization equivalent to the ACLU were filing suits to severely regulate abortion, while claiming that it did not want to ban abortion, would you take them seriously?"

I don't know, actually--some "conservatives" do in fact believe that abortion should be heavily regulated but not entirely banned. So, this could be their actual position.

But in any event, of course that is not a proper analogy. A proper analogy would be if someone who was in favor of abortion rights claimed that abortion regulations without adequate health exceptions would lead to the death of some women, and then accused this conservative group of actually wanting women to die. Which would be a ridiculous thing to say, and I would not take such a person seriously.

mikem,

Again, the ACLU does not help everyone with an Establishment Clause claim either. So I still don't get your argument, because the ACLU has in fact brought successful lawsuits against campus speech codes, so they are "actively defending something as basic as free speech on campuses."

So, to be frank, I think it is fair to say that you are evidencing "a hostility that causes the speaker to miss contrary evidence, and to lose a sense of perspective." But as noted above, I don't think that means you have a "syndrome".
1.11.2006 8:18am
Public_Defender:
I disagree with falsification of history to achieve political ends through the courts. But how else could your side win Lawrence, except by falsification of history?
So, when you or the ACLU's opposing lawyers backed up your assertion with disciplinary complaints or sanctions motions, how did the courts rule? Or didn't you have enough confidence in your views to put them before a court? Your argument that the ACLU cheated is belied by the fact that no sancions motions were filed. It appears that every single one of the ACLU's opposing parties thought the facts did not support your position.

One great thing about the adversarial system is that there's always another side to point out the weaknesses in your case.
1.11.2006 8:30am
Phillip J. Birmingham:
and the publication of names and contact information of licensed professionals offering reproductive health services in the Oregon "Nuremberg Files" case.

It's a nice story to heat up the blood, but it is not true. The ACLU filed an amicus brief in favor of the ACLA, which posted the Nuremberg Files. I'll leave finding other errors and omissions to the other readers.
1.11.2006 9:55am
Deoxy (mail):
Noah,

Basically, it would appear to me, you like the rights the Supreme Court has pulled out of the air, so you say they are behaving correctly. I assure you, they could pull nearly any "right" they want out of there, and you would not agree with them all. I am basically saying that the Supreme Court is not the right place to "create" (or "recognize for the first time", if that's really what people think is happening) rights. I object to the process. As I've said before, any change to the Constitution (and "finding" rights in there is certainly a change) should be legislative. Otherwise, you are being ruled by nine in black robes; I call that (and especially calling that "freedom") CRAZY.

Public_Defender:

Whether sanctions were filed or not does not define whether there was falsification. It's very, VERY simple. The ACLU claimed that laws banning sodomy were new; Clayton (and many others) were able to easily show (in a matter of minutes, as you could well do if you liked) that this was false, as AT LEAST SEVERAL of the original 13 colonies has laws on the books that even predated the Constituion itself outlawing sodomy - that's not EXACTLY "recent" (in regard to the history of this country).

You are claiming that this can't be right because the Court said it wasn't right. Remind me again why people have a low opinion of lawyers? (This is just one example.) Facts don't rearrange to suit court whim, despite court and lawyer claims to the contrary.
1.11.2006 10:36am
Clayton E. Cramer (mail) (www):

Can you please clarify this for me? It sounds to me like you're suggesting that when "the federal courts buy into the [ACLU's 'laughable'] argument" that "virtual child pornography is protected by . . . the First Amendment" -- that is to say, when the ACLU wins the case -- the ACLU "should have to fear sanctions for wasting the court's time, and that of opposing counsel."
You've quoted this out of context--and inserted "ACLU" where I was referring to any attorney.

My point was that a lot of absurd arguments get presented in court in the hopes that just maybe, they will be a winner, because there is no risk of being sanctioned (at least, if you are on the left). For example, the suit against Los Cruces, New Mexico, because they have three stylized crosses in their city seal. (Los Cruces is Spanish for "the crosses.")

This was a suit that even the ACLU wasn't willing to pursue, not because it was ridiculous, but because they thought it unlikely they could win it. Why not bring ridiculous suits like this to court? There's really no significant cost to the attorney (a guy named Weinbaum) if he loses--but there is a significant cost to the city of Los Cruces for defending an historic symbol of their city.

Now, if your goal is to keep the money machine running for attorneys (file a silly suit--maybe you'll get lucky and make a pile of money, and at worst you waste some of your time), then this makes perfect sense. At some point, the people are going to wake up and start punishing this type of extortion.
1.11.2006 11:26am
Phillip J. Birmingham:
Deoxy:

The "right to privacy".

Why is this any more made up than the "Freedom of Association" you claim is being abridged?
1.11.2006 11:32am
Clayton E. Cramer (mail) (www):
Noah Klein writes:

It is not the nation it was in 1789. It has grown, changed and evolved. And so should our understanding of the document that founded.
When you say "our understanding," you imply some sort of consensus. Yet the whole point of the ACLU is to impose a minority view on the majority. We have a procedure written into the Constitution for dealing with situations where "our understanding... has grown, changed and evolved." We amend the Constitution. We did that to abolish slavery; guarantee equal rights regardless of race or previous condition of servitude; guarantee voting rights for those over 18, and for women. But that would actually require some sort of agreement. The ACLU just makes up rights as it goes along.

You say that freedom, as defined by the ninth amendment, must only be what it was considered in 1789, but that would mean that a variety of freedoms that exist today would not exist, because they would not fit into that 1789 understanding of the ninth amendment. Sodomy was illegal and of course so were gay marriages. But Clayton if our understanding of the Establishment Clause can evolve than why not understanding of the ninth amendment.
The Constitution establishes a baseline of protections. We enjoy a great many other freedoms because the majority believes that there's no point in passing a law on a particular subject. As I made clear, who is allowed to hold public office expanded substantially in the early 19th century not because the Constitution required it, but because the majority changed its mind. Now, if liberals could persuade a majority about same-sex marriage, they wouldn't need to impose their will through the courts. But liberals don't really need to do any persuading of the majority, as long as they control the federal courts.

Finally, you point out that abortions were only illegal at the time after "the quickening," does that mean that abortions in the first trimester must be a freedom people have under the ninth amendment?
Certainly it is protected from federal regulation. The Ninth Amendment was only intended to limit federal authority, however, so the states are still free to regulate it as the majority sees fit.
1.11.2006 11:37am
Noah Klein (mail):
Deoxy:

You still failed to answer the question. The ninth amendment is clear. It says that the rights listed in first eight amendments are not exclusive. You say that any rights guarranted to the people by G-d must first be approved by a legislature. That doesn't make sense. The reason the first eight amendments were written was to ensure that the state does not get to decide on the rights of individuals. Why would this be different for the ninth amendment? Why would the legislature have to approve of the rights of the individual and in often case the minority for these to be rights? Our system was set up saying that we do give up some of our rights to the state, but it also said that any rights not necessary to the functioning of our government (as laid out by the constitution) are retained by the people. These rights don't need to be guarranteed by the Supreme Court for us to retain them, but when some action of government restricts this rights we have a remedy in the Supreme Court. Do you believe in the principle of G-d-given rights? If so, then why would these rights need to be approved of by Congress?

Secondly, I am not stating any position that is outside the mainstream (most people believe we retain rights that are not in the Bill of Rights, ie the right to privacy). I am not stating a position that was not believed by our founders. As I said above, it was Madison who wanted to include this provision to ensure that people did not think the first eight amendments were exhaustive. Nor am I stating a position that is not backed up by philosophical scholars, such as John Stuart Mill. Finally, I am stating a position that is "affected with madness; insane," which is the definition of crazy. I am stating a position, which you disagree with. I am stating a position that expands freedom, which you disagree with. I don't think your reading of the Constitution is crazy. It is legitimate and upheld by many constitutional scholars and some justices. I think the problem is that you can't defend your position and thus you are left to dismissing something that you can't understand or attack on its merits.

Noah
1.11.2006 11:43am
Clayton E. Cramer (mail) (www):
Jon Rowe writes:


Exactly, not only did the friends of religious neutrality (our founders) know that the word "religion" applied to more than just the Christian sects, so too did the enemies who opposed the unamended Constitution because they knew Art. VI would permit the election of those with unorthodox religious beliefs or complete lack thereof.
Neutrality between religions and freedom of religious exercise are a bit different from prohibiting establishment of religion--and both are different from the Art. VI protection. Jumbling them together may look like a coherent argument to you, but it doesn't to me.

The establishment clause prohibited giving preference to any one "establishment" of religion--a particular denomination. This would be true for any religion, Protestant, Catholic, Jewish, Muslim, Hindu. The religious exercise clause protected the right of people to hold to a different religion--although the Framers did not mean that any action at all that could be called religious was protected--otherwise laws against murder if performed as part of a human sacrifice cult would be struck down.

Neither of these clauses required that the federal government be neutrality between religion and irreligion, and it was not. Neither of these clauses required that the federal government be neutral in supporting a broad definition of Christianity--and it was not.



What I was getting at was you wrote: "The establishment clause was intended to create neutrality between Christian denominations." This is a different claim than simply the EC forbids the "Establishment of a national Church." Government can still grant Free Exercise, have no Established Church, but still in some way privilege one Christian sect over another.
Nope. Look at the language of the establishment clause: "Congress shall make no law respecting an establishment of religion...." "Respecting" means "having to do with." How can Congress privilege one sect or another without passing a law that has something to do with that sect?

The word "neutrality" seems to raise a non-discrimination principle (something like equality). Various scholars have noticed that the EC has often vindicated "equality" claims. And this shouldn't surprise us given that the liberty and equality are the twin pillars of (small l) liberalism (and Free Exercise obviously vindicates "liberty").
If there had been a lot of non-Christian sects in America in 1789, your claim would be a lot more persuasive. Perhaps the First Congress intended this strict neutrality between religions. There is no evidence of such an intent. There is clear evidence of strict neutrality (at the federal level) between Christian sects.

My point was whatever religious rights are secured in a constitutional sense (that's the $1,000,000 question) apply equally to not just "the Christian sects," but to all religions. So if "religious neutrality" is a valid constitutional principle, it is not simply neutrality "between Christian denominations," but religious neutrality period.
Again, you would prefer to find such a strict neutrality. In practice, Americans overwhelmingly share this view (and thus require no ACLU lawsuits to make it happen). Let's see some evidence for your claim that the Founders intended strict neutrality between all religions.
1.11.2006 11:50am
Clayton E. Cramer (mail) (www):

Why do you say the poster who made the "intergenerational sex" comment is a liberal?
Oh yeah, that's definitely a position that a conservative would take.
1.11.2006 11:53am
Clayton E. Cramer (mail) (www):
Noah Klein writes:


This interpretation of the amendment is not crazy or without or a ridiculous reading of the constitution. Heck, the entire Libertarian party and philosophy is base on the 2nd, 9th and 10 amendments and an originalist reading of the constitution. You may think there wrong, but they are pretty sane.
I was an activist in the Libertarian Party in the early 1980s. I would dispute "they are pretty sane," at least as an average. Part of why I am no longer a libertarian is that I went back to school, earned a BA and an MA in History, specializing in American history. I discovered that much of their reading of original intent is utterly bogus. Even on issues where I agree with them in general (gun control), they manage to get so many of the philosophical assumptions wrong that it leads to bizarre results--like the idea that you have an individual right to possess nuclear weapons.
1.11.2006 11:57am
Clayton E. Cramer (mail) (www):

A proper analogy would be if someone who was in favor of abortion rights claimed that abortion regulations without adequate health exceptions would lead to the death of some women, and then accused this conservative group of actually wanting women to die. Which would be a ridiculous thing to say, and I would not take such a person seriously.
I see liberals make statements like this all the time.
1.11.2006 11:59am
Clayton E. Cramer (mail) (www):
Public Defender writes:

So, when you or the ACLU's opposing lawyers backed up your assertion with disciplinary complaints or sanctions motions, how did the courts rule? Or didn't you have enough confidence in your views to put them before a court? Your argument that the ACLU cheated is belied by the fact that no sancions motions were filed. It appears that every single one of the ACLU's opposing parties thought the facts did not support your position.
And you expect a court system that accepted clearly false statements and constructed a major Supreme Court decision around false statements to go ahead and admit, "Oh, whoops! We were deceived (or dishonest) and accepted false statements, so we are going to punish the lawyers who lied to us--but not overturn the decision based on those lies."

Yeah, right. When pigs fly.

Remember, judges are lawyers, too. Therefore, integrity is less important than imposing their point of view on the majority.
1.11.2006 12:02pm
Medis:
Clayton,

You say: "I see liberals make statements like this all the time."

Exactly my point. I doubt you find those "liberals" very credible. So why would you want to imitate their rhetorical techniques?
1.11.2006 12:13pm
Eugene Volokh (www):
Deoxy: Please don't call fellow commentators' arguments "stark raving insane"; calmer ways of expressing disagreement are more effective, and more polite.
1.11.2006 12:15pm
Clayton E. Cramer (mail) (www):

Exactly my point. I doubt you find those "liberals" very credible. So why would you want to imitate their rhetorical techniques?
Because I am persuaded that the ACLU's goal is to promote child molestation. The allegation--which the ACLU doesn't want a jury to decide the facts of--is that NAMBLA's materials were not simply an advocacy of a position, but detailed instructions on how to rape little boys and get away with it. Their defense of NAMBLA in the Curley civil suit makes NO SENSE, except as a way to keep groups like NAMBLA alive, to continue encouraging molestation. (Not that NAMBLA's demise would make much of a difference in the amount of molestation.)

Their "due process liberty interest" argument in Limon (unlike the equal protection claim in that suit) makes NO SENSE, except as a setup for decriminalizing child molestation where the adult manages to manipulate a child into sex.

These arguments are bad public relations, and completely unnecessary to legitimate defenses of civil liberties--but they do make a lot of sense for promoting child molestation.

You explain to me why they would take these positions if not for that for that reason.
1.11.2006 12:24pm
Noah Klein (mail):
Clayton:

The ACLU does not impose the views of the minority on the majority. The majority is able to hold whatever views it wants. The majority, as it does is able to not publicly fund abortion, to promote adoption and alternatives to abortion and so on. The majority holds all the rights they currently hold. The difference is that the court recognized the rights of the minority.

No matter, how much you dislike the practice of abortion, homosexuality and other rights that have been confirmed by the court, they do not affect you. You will not be forced to have an abortion, homosexual sex or anything else. It only says that, sorry, you have to live with something that you don't like. This is the nature of America. I have to live with a lot of things I don't like. I am Jewish. I live in a country where a majority of the people are Christian. I am not completely happy when people have tried to convert on the bus or at my job, but I lived with it, because I recognized their right to try and to express their views on religion. I am also a football fan and I dislike figure skating. When I watch Monday Night Football, I often go to ESPN during commercials to check on other sports and find they're showing figure skating! Honestly, how many people really like figure skating? But I live with it.

Majority rules on issues of public policy. If the majority wants to have high tazes, they get high taxes. If they want low taxes, they get low taxes. If they want to encourage safe driving, they can use their appropriations to the states to do so. If they want Social Security, they get it. These are the areas where the majority rules. They do not get to rule on the liberties of the individual. That is not their sphere.

You say: "As I made clear, who is allowed to hold public office expanded substantially in the early 19th century not because the Constitution required it, but because the majority changed its mind."

Yet, the Constitution states clearly no religious test will be required for public office. The legislatures may have finally accorded with the constitutional principles, but the principles were laid out in the Constitution. If a Jewish, Muslim or Catholic wanted to assert their right to hold public office, would they have no merit in saying "the constitution says no religious test?" The words of the constitution need to be read as what they say. Their is language in the document that is very specific, such as the first amendment and powers in the Article I and there are sections, which are broad like the ninth amendment and the "necessary and proper" clause. This document was supposed serve for an American state that founders hoped would last for hundreds of generations. They wrote a document, which they thought would allow the people the most freedoms possible and gave the government the necessary power to govern those people of future generations. Just because you don't like what the country and its government has become, does not mean it is illegitimate or that my reading of the document is wrong.


Noah
1.11.2006 12:27pm
Clayton E. Cramer (mail) (www):
Noah Klein writes:


The ACLU does not impose the views of the minority on the majority. The majority is able to hold whatever views it wants. The majority, as it does is able to not publicly fund abortion, to promote adoption and alternatives to abortion and so on. The majority holds all the rights they currently hold. The difference is that the court recognized the rights of the minority.
Congratulations on your sophism. I can play your little game too: "The majority does not impose the views of the majority on the minority. The minority is able to hold whatever views it wants. The minority, as it does, is free to promote abortion (although not actually have it available) and alternatives to adoption and so on."

You know full well what I meant. If you really want to play this game, however, then let's be honest about it. You would be incensed, and the ACLU and fellow liberal organizations would file suit, if the government abolished all welfare programs, allowed oil drilling in the ANWR, repealed all gun control laws, and in general, adopted the anarchist position that you seem to want for some laws, but not others.

Majority rules on issues of public policy. If the majority wants to have high tazes, they get high taxes. If they want low taxes, they get low taxes. If they want to encourage safe driving, they can use their appropriations to the states to do so. If they want Social Security, they get it. These are the areas where the majority rules. They do not get to rule on the liberties of the individual. That is not their sphere.
So you are saying that the government may not pass laws? You would support repeal of all gun control laws, then.

Don't laws against murder and rape violate the "individual liberties" of people who don't share our narrow-minded ideas of public morality?

Now, you are going to argue "but those violate the rights of the victims." I would agree. But what makes it okay for the majority to diminish the rights of a minority to do as it pleases?

You don't really believe in this anarchy position. It is just a convenient excuse to get what you want. But I will say this: if you and the ACLU really want to pursue the anarchy position consistently, go ahead. Child molestation is likely to become considerably more dangerous than it is today.


You say: "As I made clear, who is allowed to hold public office expanded substantially in the early 19th century not because the Constitution required it, but because the majority changed its mind."

Yet, the Constitution states clearly no religious test will be required for public office. The legislatures may have finally accorded with the constitutional principles, but the principles were laid out in the Constitution.
You need to go read the Constitution. The Art. VI requirement applies only to federal offices. The various state constitutional requirements were for state offices.

Have you considered the idea that liberals could actually try and persuade the majority? Oh, whoops! You had control of the government for several decades, and you still control most media outlets and all universities (with a couple of weird exceptions)--and the more that you promote your ideas, the less acceptable they become. Hence, the need to impose your views on others through the courts.
1.11.2006 12:42pm
Bob Loblaw (www):

Why do you say the poster who made the "intergenerational sex" comment is a liberal?

Oh yeah, that's definitely a position that a conservative would take.
Actually it's the position the polygamists in south Utah, Idaho and other places take all the time with their 14 and 15 year old "brides". They certainly are not "liberals", but it would be as utterly ridiculous for anyone to therefore determine this is a conservative position as it is for you to impute the "intergenerational sex" comment to liberals. Get this in your head: NO sane, rational person of any political leaning thinks sex with a seven year old is remotely okay, no matter how you want to twist and distort the facts. You continue to prove EV's point much better than anyone else could.
1.11.2006 12:52pm
Noah Klein (mail):
Clayton and Deoxy:

I think it is important that you understand that your opinions are your opinions. They are not by virtue of being your opinions the opinions of the majority. They are not the opinions of the majority unless demonstrated by scientific polling to be so. The opinions in opposition to your opinions are not by virtue of being opposition to your opinions: "crazy," "wrong," "illogical" or any vituperative you throw at them. G-d did not tell you, "you are right." I am pretty certain in this assertion. Thus you can not claim absolutely that your position is correct. Your tossing these vituperations demonstrates either your lack of intelligence, debating skills or reason. If you debate, fine that's why I'm here. That's why others are here, but if your going to assume that all evidence comes forward to oppose your position is wrong or insane then your going to have a tough time convincing peole you're right.

Clayton, the Libertarian Party does take things to their extreme. The party wants a very literalists definition of the constitution. Thus the government must be the same proportions as it was in 1789 and every freedom imaginable is retained by the people. I don't agree with this position, but its not insane. There happens to be a member of the Supreme Court that believes in such a literalist reading of the Constitution. Their philosophical assumptions and their political determinations may be wrong. But just because you believe they are wrong does not mean they are wrong. Please stop believing you are G-d or his annoited on Earth.

Finally, I just checked out the Libertarian Party website. Nowhere there does it say that they support people owning nuclear waapons. I also used to know a couple libertarians who never made such an extreme claim. Perhaps, you ran into a couple of extreme members of the party. But if we judge whole parties by their extreme than a lot of false assumptions will be made.

Noah
1.11.2006 12:55pm
Clayton E. Cramer (mail) (www):

Actually it's the position the polygamists in south Utah, Idaho and other places take all the time with their 14 and 15 year old "brides". They certainly are not "liberals", but it would be as utterly ridiculous for anyone to therefore determine this is a conservative position as it is for you to impute the "intergenerational sex" comment to liberals. Get this in your head: NO sane, rational person of any political leaning thinks sex with a seven year old is remotely okay, no matter how you want to twist and distort the facts.
Except, of course, for the group that the ACLU is defending from a civil suit for encouraging rape of children.

And yes, there are a lot of liberals who believe that age of consent laws are either way too high, or are of questionable value. You might not be one of them--good. But don't pretend that there isn't a pretty serious faction of liberals that want age of consent dropped to 12 or lower.
1.11.2006 1:09pm
Noah Klein (mail):
Clayton:

If you can find a majority to get rid of welfare, social security, gun control laws, to drill in ANWR and number of other public policy questions, then guess what you'll get it. This is a democracy and the majority does not public policy. I don't believe they'll do many of things that you advocates, but that is their right as the majority. The ACLU and I or whoever can file as many suits as we want. That doesn't mean will win. We wouldn't and I wouldn't do so because those are public questions, where the majority made determination. Do you really think I like where public policy is going now? Let me dispel that notion. I don't. I think there is a lot problems with the Republican agenda and the policy that they make. But too bad for me a majority of the public disgrees with me. Thus I have to live with it.

You are so right. We did control Congress and the presidency for many decades. In that time we changed the face of government and brought about many things, like civil rights legislation, Medicare, Medicaid, environmental just to name a few. The public in the 1990's felt that the Democrats had gone too far and were corrupt. Democrats lost the Congress. And you got your president. Therefore, the public policy is Republican. This does not mean that people's liberties are public policy. They're not. They are given to people by G-d. No state can take them away. People do give some of their freedoms to the government so that it can maintain order and protect the state, but liberties, like privacy, which don't affect the state are retained by the people. If you don't like this system, move. I think I might be happy to get rid of you. There are many democracies, which don't apply the prinicple I states above. But NOT THIS ONE.

Noah
1.11.2006 1:12pm
Clayton E. Cramer (mail) (www):

I think it is important that you understand that your opinions are your opinions. They are not by virtue of being your opinions the opinions of the majority. They are not the opinions of the majority unless demonstrated by scientific polling to be so.
How about if demonstrated by a vote of the people or their elected representatives? Yet that is the entire ACLU agenda--overturning majority will.


Finally, I just checked out the Libertarian Party website. Nowhere there does it say that they support people owning nuclear waapons. I also used to know a couple libertarians who never made such an extreme claim. Perhaps, you ran into a couple of extreme members of the party. But if we judge whole parties by their extreme than a lot of false assumptions will be made.
I didn't know "a couple libertarians." I knew hundreds of them. These are people that I worked with on a weekly basis, running campaigns, distributing literature, attending Libertarian Party conventions. Many of them were pretty sensible, and would have agreed that something as absurd as private ownership of nuclear weapons was crazy. But there were a rather sizeable faction who were just in love with ideas to the exclusion of reality. That age of consent laws made no sense, because it denied minors the right to make up their own minds. That laws against drunk driving violated individual rights. That laws against animal cruelty were a violation of property rights. That laws prohibiting gun ownership by minors were contrary to the Second Amendment. That public schools should be completely abolished. (This was actually a majority position within the LP.)
1.11.2006 1:15pm
Bob Loblaw (www):

NO sane, rational person of any political leaning thinks sex with a seven year old is remotely okay, no matter how you want to twist and distort the facts.

Except, of course, for the group that the ACLU is defending from a civil suit for encouraging rape of children.
Interesting that you consider NAMBLA "sane and rational". I don't.
1.11.2006 1:17pm
Noah Klein (mail):
Clayton:

You say: "And yes, there are a lot of liberals who believe that age of consent laws are either way too high, or are of questionable value."

Where do you get this from? Is there some type of conservative secret manual on the positions of all liberals? Can I get a copy? I would like to know what I believe. First, demonstrate your points with facts not opinions. Then, make a logical argument. Finally, to disagree with age of consent laws which makes it illegal for a 17 year-old and 16 year-old and being ok with somebody raping a seven year-old child. Don't you know that feminists are also considered liberal. You think their ok with a 30 year-old raping a seven year-old?

Noah
1.11.2006 1:19pm
Clayton E. Cramer (mail) (www):

Therefore, the public policy is Republican. This does not mean that people's liberties are public policy. They're not.
I don't dispute this. What I am disputing is that your definition of "people's liberties" includes a lot of things that the authors of our constitution regarded as felonies.

Sodomy was a felony in every state when the Bill of Rights was adopted. What was then felonious, is now Constitutionally protected?

Yeah, yeah, argue all you want that times have changed, and the Constitution has changed. But I want you to tell me what your reaction would be if the Supreme Court in some future that I can't even imagine decided that the Fourteenth Amendment guaranteed the right of white people to live in segregated communities? Absurd? No more absurd than turning a felony into a right.

The Constitution is a contract across the generations--that it guarantees certain rights which may not be abridged. The definition of those rights is fixed until we amend it. Otherwise, it is just a matter of who has control of the courts.
1.11.2006 1:21pm
Clayton E. Cramer (mail) (www):

Interesting that you consider NAMBLA "sane and rational". I don't.
I was referring to the organization that is defending their right to distribute materials telling how to rape children and get away with it: the ACLU.
1.11.2006 1:22pm
Clayton E. Cramer (mail) (www):

Where do you get this from? Is there some type of conservative secret manual on the positions of all liberals? Can I get a copy? I would like to know what I believe. First, demonstrate your points with facts not opinions. Then, make a logical argument. Finally, to disagree with age of consent laws which makes it illegal for a 17 year-old and 16 year-old and being ok with somebody raping a seven year-old child. Don't you know that feminists are also considered liberal. You think their ok with a 30 year-old raping a seven year-old?
I know that the NAMBLA national convention was held in the "Women's Building" in San Francisco a few years ago. I guess some feminists don't have a problem with it.

Sorry, but try all you want to deny it, I've talked to way too many liberals when I lived in California who defended the "age of consent is way too high" argument. When Governor Pete Wilson started to make an issue of the fact that large numbers of teenaged mothers were the result of adult men (like 20s and 30s) having sex with 13 year olds, I saw liberals attack him for being a racist. The claim was that having sex with young girls was "part of their culture."
1.11.2006 1:26pm
Bob Loblaw (www):

I was referring to the organization that is defending their right to distribute materials telling how to rape children and get away with it: the ACLU.
No you weren't, and don't try to spin it that way. We can read English. You said "except for the group that the ACLU is defending from a civil suit . . ." That group is NAMBLA. If you meant the ACLU, you would have said "Except for the ACLU".
1.11.2006 1:27pm
Noah Klein (mail):
Clayton:

I would suggest that you look at what your elected leaders want on the issues that ACLU believes. I don't know of any majority that have ever said that they would vote to overrule Roe v. Wade or other positions. I am not saying I am the majority or that ACLU is the majority. I said that they deal with individual liberties, which the majority, no matter how large, can not violate. But if you think, your opinion is the majority on Roe v. Wade, privacy and other issues than why aren't they passing constitutional amendments to defeat the ACLUs position.

Noah
1.11.2006 1:29pm
Bob Loblaw (www):

I know that the NAMBLA national convention was held in the "Women's Building" in San Francisco a few years ago. I guess some feminists don't have a problem with it.
Clayton, you are becoming a caricature of yourself, which believe me is not easy.
1.11.2006 1:30pm
Clayton E. Cramer (mail) (www):
So you are saying that the ACLU is defending a group that you believe is not "sane, rational". I guess that you are suffering from ACLU Derangement Syndrome.

Keep trying to spin this so that it makes sense. It is entertaining watching you defend the ACLU for defending evil.
1.11.2006 1:30pm
Clayton E. Cramer (mail) (www):

I would suggest that you look at what your elected leaders want on the issues that ACLU believes. I don't know of any majority that have ever said that they would vote to overrule Roe v. Wade or other positions.
This is becoming laughable. The whole point of Roe v. Wade was to overturn the laws of the 45 states that prohibited elective abortions. The subsequent lawsuits challenging state and territorial laws for even peripheral issues, such as parental notification, were all passed by legislative majorities. The reason that liberals are terrified of Alito is supposedly fear that he will overturn Roe v. Wade. Why are they afraid, if it won't cause state legislatures to pass laws regulating abortion?

I am trying hard to understand how you can make statements like this with a straight face. Oh, that's right. You're a lawyer. You have to make statements that you know aren't true with a straight face. That's your job.
1.11.2006 1:34pm
Clayton E. Cramer (mail) (www):


I know that the NAMBLA national convention was held in the "Women's Building" in San Francisco a few years ago. I guess some feminists don't have a problem with it.


Clayton, you are becoming a caricature of yourself, which believe me is not easy.
For pointing out that an organization of lesbian feminists rented space to a child rape advocacy group? I proved that you were wrong. Next?

Back in the early 1990s, I spent a lot of time trying to get rape made into a more serious crime in California. I wrote a lot of letters to not only my representatives but those of others as well, asking them to increase the penalties for forcible rape.

The responses I received were essentially of the form, "feminists don't want this." Apparently, feminists were convinced that Californians didn't think rape was a very serious crime, and that if the penalty were made as serious as, some gun control violations, juries wouldn't convict. I rather suspect that this had more to do with the predilictions of the state legislators--people like Sen. Alan Robbins (D), who when he wasn't carrying bills for feminists to prevent questioning victims about prior sexual behavior, was using those same techniques at his own criminal trial for statutory rape. (Eventually, Robbins went to federal prison for taking bribes.)
1.11.2006 1:40pm
Bob Loblaw (www):

So you are saying that the ACLU is defending a group that you believe is not "sane, rational".
Uh, yes, Sherlock, that's exactly what I'm saying. I'd say the same thing if they were defending your speech rights, and I'd think they were doing the right thing both times.
1.11.2006 1:48pm
Noah Klein (mail):
Clayton:

Merely because an organization holds a convention in a city known for being liberal, does not mean the people in that city believe in what the convention says. I'll give you an example. The Republican Convention was held in New York. Do you think New Yorkers believe in the Republican Convention? No matter how much you and I and all the bloggers in world think NAMBLA is disgusting our constitution confirms their right to associate and speak.

The liberals you say you talked is not evidence. It's hearsay. I don't know if you lived in California or if you lived in area that's liberal and thus talked to many liberals. As to the thing with Pete Wilson, it is the same thing that the AG is doing in Kansas. Both of them made the assumption that blah blah blah. They never had any evidence. Which liberals called him racist? Which liberals said that it was "part of their culture?"

I have heard conservatives say very many things I disagree fervently. I heard them say things that I can not understand why they believe it. I heard people make the "nuclear weapons as personal weapons" argument. I have heard them say "the Ten Commandments has nothing to do with religion, but are just good rules to follow." I have heard them say that the government should smart bomb U.S. citizens in the U.S. if it feels that it is necessary to protect national security. I would associate all Republicans or all conservatives with these beliefs. Why do you do so with liberals? Why would you associate a group of people with some individuals statements if there is no evidence that that group believes what the individual believes? I would assert it is because you have no logical argument and thus must resort to extreme examples to smear all your opponents with so they will become so disgusted with your tactics that they give up. I won't.

As to your position about felonies at the time of the Constitution now becoming constitutionally protected, what about the Alien and Sedition Act? People were convicted under this act for speaking out against the government. The law was never overturned. Does this mean that if the government passed another Alien and Sedition Act that we would once again lose our right to criticize the government. Or is it possible that even though these rights were felonies in the past they were at that time unfairly restricted from individuals and thus the Supreme Court interpretated that those past laws were unconstitutional?

Finally, the Supreme Court has ruled that the 14th amendment allows them to incorporate (I know this is the wrong word) the Bill of Rights and make it apply to the states. Thus, if the federal law at the time was that abortion could be preformed before "the quickening" and if the Bill of Rights (1-10) apply to the federal government as well as the states now, then wouldn't abortion be a right before "the quickening" for all citizens under every American government under your interpretation of the Constitution?

Noah
1.11.2006 1:56pm
Noah Klein (mail):
Clayton:

The ACLU is not insane, because they defend a group that is insane. The group is wrong, disgusting and insane. The ACLU is trying to ensure that even most disgusting have the right to say what they believe, because once we say that unpopular, disgusting beliefs are illegal we have started to make beliefs illegal, which extend to whatever majority thinks is wrong. This is the reason they defend them. You may not agree with it but ti does not make them insane. Also, ACLU DS, as described above by Volokh, is defined by Professor Volokh as "it seems to me that much criticism of the ACLU of the right reflects more by way of knee-jerk hostility than simply well-founded ideological disagreement." You don't think you're displaying this?

As to the Women's building and NAMBLA, its first wrong to say that just by renting out their building they are confirming the beliefs of the people who rented it. My manager rents me my apartment, but she doesn't say that what I believe is right. You ever think that they just wanted money and thus they didn't care what the people said. This doesn't mean that all feminists didn't care or that all San Franciscans didn't care. It just meant those people who owned the building didn't care. Also not all feminists are lesbians.

When I spoke of no majority ever supporting overturning Roe v. Wade, I was thinking of a majority in the federal government. I know that some majorities in states support overturing Roe v. Wade. For future reference, when I refer simply to "a majority" I generally mean a national majority. But this doesn't change the facts. You have not demonstrated that your opinions are the national majority's opinions. And even if you did. That wasn't my point. That was a couple sentences in a response to something you said. I was trying to show you that opinions, which you don't believe in are not on the face "insane, ridiculous" or any vituperation you can throw at them.

Finally, feminists do not like rape. One reason is because it subjugates women. Another reason is because it is mostly a crime against women. They not fans of it. They want to punish it seriously. They also want to make sure that criminals actually get convicted of it. Which is what your flawed and in the end criminal Democratic legislator was obviously trying to do:

"who when he wasn't carrying bills for feminists to prevent questioning victims about prior sexual behavior."

Now his criminal behavior does not reflect on their attempts to punish rape. Furthermore, I don't even know if what you about this man is true. Please stop making broad claims without evidence, because your credibility with me and I believe this entire thread is shot. Thus stop appealing to hearsay and other such spurious evidence. You not convince if I can't independtly verify what you say. Maybe that's not your goal. Maybe your goal is just yell and yell and yell until we agree with you. But it won't work.

Noah
1.11.2006 2:25pm
Bob Loblaw (www):

For pointing out that an organization of lesbian feminists rented space to a child rape advocacy group? I proved that you were wrong. Next?
Also, you argue like a child.
1.11.2006 2:41pm
David M. Nieporent (www):
Clayton:
Except, of course, for the group that the ACLU is defending from a civil suit for encouraging rape of children.
Except, of course,that the ACLU is not defending the "group" any more than it was defending the Nazis in Skokie. It's defending a legal principle. In the ACLU's view, if we allow civil liability for the criminal acts of others based solely on the fact that one printed a book which those others used as a reference, then free speech is threatened. It's factually identical to the Paladin Press case, where the ACLU also filed an amicus brief in favor of the publisher. (And the fear is the same fear as the one underlying the Protection of Lawful Commerce in Arms Act -- that if you give them an inch, trial lawyers can destroy even constitutionally protected industry.) That doesn't mean the ACLU is in favor of paid assassins, does it? (It doesn't even mean they're in favor of gun rights; we both know they pretend that the second amendment only protects a collective right.)

Furthermore, you are badly distorting the ACLU's Limon brief. It doesn't say what you pretend it says. It does not say that teenagers have a due process liberty interest in sex with adults. It says that teenagers have a due process liberty interest in matters related to sex, marriage, and the like, and this interest triggers a heightened scrutiny of the classification used in the Romeo and Juliet law. The ACLU did not claim -- as your false representation of their position would have it -- that the Romeo and Juliet law was unconstitutional.
1.11.2006 2:58pm
Deoxy (mail):
"The "right to privacy".

Why is this any more made up than the "Freedom of Association" you claim is being abridged?"

Because freedom of association is actually named in the Consitution? Because the "right to privacy" was a "penumbra" of certain other things, ALL of which are PROPERTY rights? And my claim that the ACLU was against it is in most easily shown in their suits agains the Boy Scouts (and other groups) trying to force them to hire people who are specifically against their beliefs OR, if they don't hire them, that they be disallowd from use of public property that other groups (which toe the PC line) DO geet to use. That's discrimination; the ACLU has been on the exact opposite side (arguing that it is indeed discrimanatory andd thus violates people's right to freely associate) when it was minority religious groups that others didn't like to have around.

"Deoxy: Please don't call fellow commentators' arguments "stark raving insane"; calmer ways of expressing disagreement are more effective, and more polite."

OK, irrational or dishonest, then. Those are the choices. The argument I'm addressing is the advocation of the SCOTUS to re-interpret the Constitution to mean whatever they SAY it means - that is, the founding and ruling document of this country has no inherent meaning at all, and its meaning from day to day is given to us by the SCOTUS. To call that "freedom" and "liberty" is either completely and utterly irrational or dishonest. There are no two ways about it. I was attempting to be generous by leaving out "dishonest".

Noah,

"I think it is important that you understand that your opinions are your opinions." etc

Yes, my opinions are my opinions, but most of what you and I are disagreeing on is basic logic, which is NOT my opinion, or redefinition of language as in 1984.

If the SCOTUS can declare rights, they can also take them away (by saying that earlier interpretations were wrong, as in Brown). That is, you are ruled at the basic, bedrock, foundation-of-law level by the nine justices. They rule your existence. To call that "freedom" is either dishonest or irrational.

I reiterate: allowing a non-democratic process to change the Constitution is to give up freedom and become slaves.

Witness: the latest "affirmative action" case before the SCOTUS (college and law school in Michigan regarding race based admissions). As a public school, and thus part of the government, the painfully plain language of the properly Amended Constitution is that the government may not discriminate based on race. The SCOTUS just said that they could. In other words, the SCOTUS just "interpreted" "The government may not" to mean "The government may".

Disregard whether you like the results that were obtained IN THIS CASE. Apply the same logic to any other part of th Constitution:

* government needs a warrant => government does not need a warrant
* may not be infringed => may be infringed

That is what you are supporting.

"Sodomy was a felony in every state when the Bill of Rights was adopted. What was then felonious, is now Constitutionally protected?"

This is best example of what I'm talking about. If you had told the Founders that this would happen, they probably wouldn't have believed you.

Personally, I have a very strong liberrtarian (little l) streak - I think attempts to "legislate morality" are, at anything but the most basic level, not worth the effort, even usually counterproductive, not to mention that I'm not willing to give the government the power to determine whether many of those things were done (the FEDERAL government - though on many things, not even the locals). The basic concept that "your freedom ends at my nose" resonates strongly with me - some of the results of the SCOTUS decisions I am lambasting strike me as good things on the whole, especially for personal freedoms. The problem is the PROCESS - the process can be used the other direction, too.

It's much like Presidential powers: I trust the current Administration so incredibly much more than the last one - that is, I only distrust them a lot instead of infinitely. I am uncomfortable with some of the recent expansions of executive power, in that they might be abused; but I am HORRIFIED at the recent expansions of executive power when I think of Clinton with the same powers. The process of "reinterpreting" the Constitution to find what the justices want in it is the same way - you might like the results so far, with THESE justices, but these justices will not always be the ones on the court. Imagine, just for a ridiculous extreme, a SCOTUS comprised of 9 David Duke followers, for instance.

Think not of what GOOD can be done with the power you are granting government, but what ABUSE, what BAD. It is likely to happen eventually.

Policemen sometimes go crooked, and innocent people go to jail. We justify that cost of those victims by the benefit of the people NOT made victims of criminals (among other justifications).

The power of the SCOTUS going "crooked", even occasionally, gives us terrible things, like the recent Kelo decision. It is now "Constitutional" for the government (at any level) to take your private proprty and give it to another private entity, with the simple requirement that the government believes that they will, eventually, gain higher tax revenue as a result. That is an abomination, effectively gutting Constitutional property rights. Place that opposite all your rights "gained" by SCOTUS decision as an example of why the process is bad.
1.11.2006 3:20pm
Clayton E. Cramer (mail) (www):
Noah Klein writes:


Merely because an organization holds a convention in a city known for being liberal, does not mean the people in that city believe in what the convention says.
I can't believe that your reading skills are this limited. It wasn't because the convention was in San Francisco. It was who rented them space.


No matter how much you and I and all the bloggers in world think NAMBLA is disgusting our constitution confirms their right to associate and speak.
And they can be held responsible for their speech, if it plays a clear role in causing a crime. The ACLU disagrees, of course. I suppose that the ACLU would challenge incitement to riot laws if a Klansmen whipped the crowd into a frenzy, and the mob then went and murdered a bunch of black people.


As to the thing with Pete Wilson, it is the same thing that the AG is doing in Kansas. Both of them made the assumption that blah blah blah. They never had any evidence.
The evidence came from statistics compiled by the state's health and welfare agency. That's what provoked Pete Wilson to pursue this matter.


Why do you do so with liberals? Why would you associate a group of people with some individuals statements if there is no evidence that that group believes what the individual believes?
When you hear the same deranged ideas repeatedly from liberals--and when liberal organizations such as the ACLU defend those deranged ideas--you start to see a pattern.


When I spoke of no majority ever supporting overturning Roe v. Wade, I was thinking of a majority in the federal government.
The federal partial-birth abortion ban--which the ACLU has tied up in court. Wrong again. (I'm being charitable.)


As to your position about felonies at the time of the Constitution now becoming constitutionally protected, what about the Alien and Sedition Act? People were convicted under this act for speaking out against the government. The law was never overturned. Does this mean that if the government passed another Alien and Sedition Act that we would once again lose our right to criticize the government.
The Sedition Act (the Alien Act was a completely separate law) prohibited false and malicious speech against the government. The Constitutional flaw of the Sedition Act was not how it was written, but how it was applied. A statement that was "false and malicious" was not protected by the First Amendment; the difficulty was that Federalist judges and juries convicted people whose statements were not false.

You will notice that the equivalent of the Sedition Act--criminal libel statutes--are still on the books, and occasionally enforced, of about half the states. I suspect that every state had them at the time of the Revolution. These statutes are sometimes (perhaps often) used to suppress opposition to the government, such as the current case in Farmington, New Mexico. I'm not thrilled with such statutes, but neither are they obviously unconstitutional--although how they are applied (as in Farmington) may well be.


Or is it possible that even though these rights were felonies in the past they were at that time unfairly restricted from individuals and thus the Supreme Court interpretated that those past laws were unconstitutional?
By denying that those felonies were felonies? That's just dishonesty.
1.11.2006 3:35pm
Jon Rowe (mail) (www):

Neutrality between religions and freedom of religious exercise are a bit different from prohibiting establishment of religion--and both are different from the Art. VI protection. Jumbling them together may look like a coherent argument to you, but it doesn't to me.


I am simply arguing that the term "religion" means the same thing in all three clauses of the Constitution. [Hell in the First Amendment, the term is used only once; the word "thereof" is used in the Free Exercise Clause and refers back to the term "religion" in the Establishment Clause].

And that the word "religion" doesn't mean "Christianity" but rather "all religions."

Having that word mean three different things in the three clauses, it seems to me, is the approach that is "jumbled" and "incoherent."

My approach is more consistent with the text of the Constitution as well, which makes no distinction between the Christian and non-Christian religions.
1.11.2006 3:43pm
Clayton E. Cramer (mail) (www):

Except, of course,that the ACLU is not defending the "group" any more than it was defending the Nazis in Skokie. It's defending a legal principle. In the ACLU's view, if we allow civil liability for the criminal acts of others based solely on the fact that one printed a book which those others used as a reference, then free speech is threatened. It's factually identical to the Paladin Press case, where the ACLU also filed an amicus brief in favor of the publisher.
You probably think that Paladin Press should have gotten off without consequences for their actions. There comes a moment--and I will admit that there is no bright line distinguishing the two sides--where detailed instructions on how to do something antisocial are not a social good. If someone uses those instructions to injure another person, it is perfectly legitimate to hold the publisher responsible for their actions. If you want to write fiction, you can. You don't need to give detailed instructions on how to make meth, or how to commit a rape without getting caught, or how to poison a city's water system.


Furthermore, you are badly distorting the ACLU's Limon brief. It doesn't say what you pretend it says. It does not say that teenagers have a due process liberty interest in sex with adults. It says that teenagers have a due process liberty interest in matters related to sex, marriage, and the like, and this interest triggers a heightened scrutiny of the classification used in the Romeo and Juliet law. The ACLU did not claim -- as your false representation of their position would have it -- that the Romeo and Juliet law was unconstitutional.
And how many laws that they cited in that footnote has the ACLU agreed should survive heightened scrutiny?

More importantly, why does a minor's liberty interest play into this at all? The minor wasn't being charged--it was the adult who the minor said "No" to who was charged. If the minor was being charged, I could see why there might be an argument about whether his rights were being denied. It was the adult who was being charged--so if heightened scrutiny was an issue, then it was the adult's liberty interest that should have been the issue.

And again: there's this pattern we are seeing of the ACLU looking over the interests of adults wanting to have sex with children.
1.11.2006 3:43pm
Clayton E. Cramer (mail) (www):
Noah Klein writes:


Finally, the Supreme Court has ruled that the 14th amendment allows them to incorporate (I know this is the wrong word) the Bill of Rights and make it apply to the states. Thus, if the federal law at the time was that abortion could be preformed before "the quickening" and if the Bill of Rights (1-10) apply to the federal government as well as the states now, then wouldn't abortion be a right before "the quickening" for all citizens under every American government under your interpretation of the Constitution?
Did you pass the bar exam? Both proponents and opponents of the 14th Amendment agreed that the "privileges and immunities" clause was supposed to incorporate the protections of the first eight amendments against the states. Rep. Bingham actually read off the list on the floor of the House.

The Supreme Court, engaging in your form of reasoning, decided that original intent didn't much matter, and first refused to incorporate any of the protections. See the Slaughter-House Cases and U.S. v. Cruikshank.

Then, in the 20th century, rather than admit that their predecessors screwed up, the Supreme Court engaged in what is called "selective incorporation," by which they picked, with no apparent pattern, which rights of the first eight amendments applied to the states--apparently using the "nor shall any State deprive any person of life, liberty, or property, without due process of law" and equal protection provisions of the 14th Amendment.

Over time, this has turned into an embarrassing (at least to laywers, who are hard to embarrass) mess, with most of the Bill of Rights incorporated against the states--but leaving out the provisions that liberals don't like, and therefore can pretend aren't there, like the Second Amendment. (Even the Third Amendment has been incorporated in a way that was completely novel and contrary to its purpose, in a case involving National Guardsmen and New York state prison guards.)

Some state constitutions have privacy provisions (such as California) which could be used to achieve this right to abortion that you want. But the Ninth Amendment won't give you what you want, without a lot of intellectual dishonesty.
1.11.2006 3:52pm
Clayton E. Cramer (mail) (www):
Rowe writes:


I am simply arguing that the term "religion" means the same thing in all three clauses of the Constitution. [Hell in the First Amendment, the term is used only once; the word "thereof" is used in the Free Exercise Clause and refers back to the term "religion" in the Establishment Clause].

And that the word "religion" doesn't mean "Christianity" but rather "all religions."

Having that word mean three different things in the three clauses, it seems to me, is the approach that is "jumbled" and "incoherent."
You've sliced the text too finely. "Establishment of religion" refers to a particular denomination, church, or other body. The "free exercise thereof" refers to an individual's free exercise of religion--which isn't the same as an "establishment of religion." Art. VI's "but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States" refers to a religious test--meaning, are you a member of a particular religion? This is neither an "establishment of religion" nor does it involve whether one practices a particular religion.

In short, you've done a lawyer on the Constitution--taking three different clauses where the context establishes different meanings, and forcing them to meet your need. It probably makes you an effective lawyer. That doesn't mean that it is right.
1.11.2006 4:02pm
NickM (mail) (www):
JosephSlater - if you want to buy it through JStor, it's for sale there (and it's available in better law libraries). Westlaw's database just is not all that good for older articles.

Noah - the Ninth Amendment refers to rights retained by the people. To be retained, you have to have had it at the time. Logically, if a matter was not generally considered to be a personal right then (i.e., in 1789), it would not fall within the class of rights retained by the people.

To say that our understanding of the Constitution has evolved so that we now deem to be inherent rights protected by the Ninth Amendment matters which were criminal then is to argue in a profoundly anti-Constitutional manner. It is to make up rights based on your own personal views and impose those for the text of the Constitution. It is the view of people then as to what constituted a right that is determinative here. It is new laws, not ancient ones, that run afoul of the Ninth Amendment (although as time has passed, laws such as those in issue in Wickard v. Filburn, which would have been wholly castigated as interfering with natural liberty rights [growing one's own food] if proposed in 1789, now may appear old).

As to the question about abortion being then criminal only after the quickening, a little historical reflection on medical knowledge is in order. The quickening, defined as when the fetus began to noticeably move within the womb (i.e., could be felt moving) was the only way to readily determine then that a woman was pregnant, and not merely getting fat. Abortions then were performed by the ingestion of a chemical compound, not by a surgical procedure (indeed, modern surgery was unknown then). Without quickening, no one could say whether the woman had even had an abortion at all. To declare that the Framers would have understood a right to abortion pre-quickening is to say that if the Framers were told that it could be detected at some point in time far earlier than quickening that a woman was with child, that they would have agreed that an abortion could have been rightfully performed until the quickening. I see no evidence to support that in the writings of any Framer.

Nick
1.11.2006 4:25pm
Noah Klein (mail):
Deoxy:

You really need to read what I said before you say it is irrational or dishonest or crazy or not the law. I am not that the Supreme Court can say that the word "freedom" means "slavery." The word freedom means freedom. The word can not just be ignored. Nobody says this. The words of the constitution are the words that must be followed. Thus if the Congress wanted to take a power like ex post facto or bills of attainder, they can't because the constitution says that can't. But, if in applying its power to regulate interstate commerce the Congress decides to build interstate highways, then they can because it makes sense that this is a aspect of regulating interstate commerce. Some people in the early 19th century disagreed with me. That does not mean they were dishonest or irrational. They read the constitution and did not see a power to build highways and did not see the "interstate commerce" clause as meaning what I said it does.

People can differ on how interpret the constitution without being irrational. I think I have been pretty rational. Prior to this post, I haven't even gotten into a broad v. narrow reading of the constitution. I just that the ninth amendment says what it says. Once again, the ninth amendment says "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." We both agree, I hope, that this is an amendment to the constitution. We both agree, I hope, that these are the first eight amendments are not the only ones granted to the people. Where we disagree, I believe, is whether the Supreme Court use what the founders considered to be their rights to be the rights that we hold today or whether we state that while these were pretty smart guys, they did not have monopoly on knowledge of rights granted to people by G-d. This is the principle I am asserting,

I don't think it is really that obnoxious to our knowledge of the founders, their beliefs and what led to the amendments. I talked above about Madison's concern over the negative pregnant. This why he included the ninth amendment. He worried that people would say that the first eight amendments were exclusive. Therefore, he included this one. If he really wanted to make the 1789 understanding of rights given to man by G-d, then why wouldn't he just list all the rights they felt a person had and leave it at that.

I am not the only person who puts forth this position. The Supreme Court does. They do not take it as far as do to say that every right that ends before your nose is a right I hold. But they do say that there are rights which are inherent. Many legal scholars, historians and political scientists adopt a position similiar to mine. You know what it means when you scream "everyone around me is crazy." In the end, your position MAY BE RIGHT. I don't think so, but I don't fall back on "you're insane."

I want to say this again so that you don't mistake my position and claim that it is not what it is: SCOTUS can not read into the constitution anything they want. Your position is a legitimate position. One held by many supreme Court justices and other legal scholars, but it is not the only, it is not necessarily the right one and it is mostly not only sane one. Democrats are not all insane, no matter how much you think they are. They are rational people who look at problems in a rational and form different opinions than yours based on their experience and intellect.

Also, I wanted to point out the fourth amendment is not only about property. It specifically menations "persons." One's own person is not a piece of property. I know you going to say, slaves were considered poperty and they were persons. This is not the same issue.

Clayton:

First, I am sorry for not putting the "s" after "Act." Secondly, government official and most certainly governments can sue under civil libel statute (New York Times v. Sullivan). Also the Sedition was particularly designed to punish dissenting speech. Thus do you think that a felony that is obviously uncostitutional, should be the determination of rights? The state's ability to make somthing illegal does not mean that they are correct in stating that it is not a right. Rights are a more ephemeral thing. Our concept of rights is closely tied ot our concept of government. In forming the social compact that will govern a society people cede rights to that eventual government. Yet the only cede the rights that are necessary for the powers that they grant that government. They retain all rights, which are unnecessary for the government to pursue policy based upon the powers given to it.

Noah
1.11.2006 4:34pm
Clayton E. Cramer (mail) (www):

Abortions then were performed by the ingestion of a chemical compound, not by a surgical procedure (indeed, modern surgery was unknown then).
Not quite true. I've read of at least surgical procedure (okay, akin to the coathanger abortion) from the Colonial period, which we know about because it led to prosecution.
1.11.2006 5:01pm
Noah Klein (mail):
Clayton:

The Supreme Court was not using my interpretation or a broad interpretation of the Fourteenth Amendment when they decided the Slaughterhouse Cases. They decided the case case wrong on its face. A broad interpretation of the 14th amendment does not mean that you don't read the words. It means that you read the words and then you interpret them. This what judges do all the time. No judge (at least not one worth his salt) says that when the law says "You may not spit on the sidewalk," it means you may spit on the sidewalk. A broad interpretation of that hypothetical law would say that the same prohibition of spitting on sidewalk applies to the street as well. It does not mean you don' read what it says.

As to your point about incorporation of the ninth amendment, Rep. Bingham's opinion on whether what rights are incorporated means nothing to me. The Supreme Court's opinion on which rights are incorporated means a lot more to me. And the Supreme Court has not made a ruling on whether the ninth amendment applies to the states. What Palko v. Conneticut and Duncan v. Louisiana says is that "the Fourteenth Amendment incorporates those principles 'implicit in the concepts of ordered liberty' or 'fundamental to the American scheme of justice.'" Thus those liberties which are necessary to maintain a free society applies to the states. They have selectively decided that most provisions of the first eight amendments apply to the states, except the right ot a grand jury indictment and the right to civil jury trial for all suits at common law involving more than $20. If you disagree with mean on the points above then you diagree with Gilbert Law summaries. The Supreme Court has never ruled on the applicability of the ninth amendment or the right to abortion through the ninth amendment on the states.
1.11.2006 5:03pm
Public_Defender:
Clayton writes:

And you expect a court system that accepted clearly false statements and constructed a major Supreme Court decision around false statements to go ahead and admit, "Oh, whoops! We were deceived (or dishonest) and accepted false statements, so we are going to punish the lawyers who lied to us--but not overturn the decision based on those lies."

You did not prove that a single word in the ACLU brief was a lie. You fisked the COURT'S OPINION, not the ACLU's brief. And I'd have to see the original sources to trust your fisking.

Contrary to what you said, the ACLU conceded that there was significant sexual regulation in colonial times. They argued that regulation largely (with a couple of exceptions) died away in the 19th and 20th Centuries.

The ACLU relied on a lack of enforcement to make their point that regulation decreased. The organization conceded that states did not even start to remove anti-sodomy laws from the books until the 1960's.

So, by fisking the court's opinion and then asserting that the ACLU lied, you are the one who is playing fast and loose with the truth. Maybe your mistake is assuming that the ACLU would sink to your level to make a point.
1.11.2006 5:07pm
Clayton E. Cramer (mail) (www):

Secondly, government official and most certainly governments can sue under civil libel statute (New York Times v. Sullivan).
They can, but the barriers put by Sullivan effectively make it impossible to win, unless the person writing the libel is extraordinarily stupid, and leaves evidence of malice or negligence. In any case, I'm not arguing that criminal libel laws are either necessary or even spectacularly useful. (And that you missed my point on this makes me wonder if you are reading what I write very carefully.) My point is that the states that ratified the First Amendment didn't bother to repeal their criminal libel statutes, nor did the courts strike them down for violating the First Amendment. Why do you suppose that was?

Also the Sedition was particularly designed to punish dissenting speech. Thus do you think that a felony that is obviously uncostitutional, should be the determination of rights? The state's ability to make somthing illegal does not mean that they are correct in stating that it is not a right. Rights are a more ephemeral thing.
This is circular reasoning on your part. The Sedition Act, while certainly passed to punish dissenting speech, is part of an existing tradition of law punishing false speech. If this were the only evidence of how "freedom of the press" was understood, it might not be very persuasive. But there's no shortage of evidence that "freedom of the press" meant "no prior restraint" not "you can't be punished for certain statements." Punishment for obscenity, for criminal libel, civil judgements for libel, incitement to riot--and yet no clever defense attorney seems to have figured out until very recently, that these were a violation of the First Amendment.

You might think that these laws are a very bad idea, and you are free to lobby Congress or the state legislature to change the law. In many cases, this has already happened--but the ACLU's understanding of the First Amendment (and not just in the area of the religion clauses) is far at variance with what the Framers intended.

We aren't talking about new technologies, or situations with no modern equivalent. If Ben Franklin had published an article on his old-fashioned printing press telling in detail how to rape little girls, and make sure that you didn't get hung for it, is there any question that he would not have been prosecuted for publishing indecency? I rather doubt that a civil suit would have resulted, however, because he would have been hanging from the gallows well before the lawyers filed the suit.
1.11.2006 5:13pm
Public_Defender:
Dexter writes:

Whether sanctions were filed or not does not define whether there was falsification. It's very, VERY simple. The ACLU claimed that laws banning sodomy were new; Clayton (and many others) were able to easily show (in a matter of minutes, as you could well do if you liked) that this was false, as AT LEAST SEVERAL of the original 13 colonies has laws on the books that even predated the Constituion itself outlawing sodomy - that's not EXACTLY "recent" (in regard to the history of this country).
You were fooled by Cramer's deceptive posts. The quotes Cramer attacked came from the court opinion, not the ACLU's brief. The ACLU's brief did not claim that no colony banned gay sex. (Sorry for the double negative.)

Using those quotes to support the argument that the ACLU lied shows either carelessness or dishonesty.
1.11.2006 5:22pm
Noah Klein (mail):
Nick:

I'm am not arguing an anti-constitutional provision. You're right that its all rights retained by the people. Yet, the people's rights were not those that were granted by the government, but were those that are natural and inherent. Philosophically, a democracy, if a majority is achieved, can outlaw all types of things we consider rights. A majority thus can say a child can't go to school or a person can't speak out against it or that homes can be searched without warrants or whatever. Madison and the Constitutional Convention did not write any protections of the individual, besides bill of attainers and ex post facto, into the document. They, first, felt that the powers were so limited that liberty could not be infringed upon. Second, Madison was clearly troubled that people would assume a list of rights to be exhaustive. Why do you think he was so worried it would be exhaustive? Madison knew what rights people felt they had at the time. He listed those rights they felt they had. He wanted to make sure that as our understanding of rights of man grow, so will those rights guarranteed by the constitution.

I am saying that even if sodomy and other rights were "considered illegal" at the time that does not mean they were were not rights. In the state of nature, a person has all the rights that do not harm other people. I believe that the people have all rights they did not cede to the government and they did not cede their rights to privacy and others. Why would they have ceded those rights? If they cede those rights, what was the governing reason for them to do so?

Noah
1.11.2006 5:32pm
Noah Klein (mail):
Clayton:

First, I dinn't miss your point. I knew what you were saying about libel was merely example to disprove my point that at the time the Congress made "malicious" speech felonious. You trying to demonstrate that I was wrong in assuming that merely because something was felony at the does not mean its right. Second, the intent behind a law is part of the justification that the Supreme Court uses to invalidate or uphold that law. A good example of this is the "moment of silence" case. In the district court, the sponsor of the bill in the state legislature said the purpose behind the law was to get prayer back in school. The Court invalidated the law because the purpose behind was religious. Thus if the Court ruled on the Sedition Act they could have looked at the intent behind and thus invalidated.

All your stuff about raping little girls and boys, I agree with you entirely. I don't why it wasn't considered indescent or so on. I disagree with your effort to disparage the ACLU for taking this case, but whatever you obviously qualify for ACLU DS. I was trying to demonstrate that just because there was a law against it in 1789 does not mean that it is not a right which is guarranteed by the ninth amendment.

Noah
1.11.2006 5:49pm
Noah Klein (mail):
Everybody:

I'm done. I have a whole lot of things to do, which I have been neglecting for too long. I wish you a happy debate.

Noah
1.11.2006 5:51pm
Clayton E. Cramer (mail) (www):

Once again, the ninth amendment says "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." We both agree, I hope, that this is an amendment to the constitution. We both agree, I hope, that these are the first eight amendments are not the only ones granted to the people.
But at least in 1789, the agreement was that the Bill of Rights was a limitation only on federal power--not on the states. Look at the rights retained by the people relative to the federal government in 1789--otherwise it is like a contract that only one party, many years later, has scribbled on the last page, "Oh yeah, I get the right to take all your property if you are one minute late on your house payment."
1.11.2006 6:05pm
Clayton E. Cramer (mail) (www):

The ACLU's brief did not claim that no colony banned gay sex. (Sorry for the double negative.)
A group of historians filed the brief that the Supreme Court used for this. Of course, I presume that Public Defender knows the art of filing briefs. From the outside, it looks like everyone just showed up at the Court, unaware of what others were going to say. That's not the way it usually works. Keeping briefs within the prescribed limits means that all the different groups get together before, and coordinate who is going to say what.

In any case, even if the ACLU had no idea that a false statement was being made in a brief filed by an ally, they have an obligation to correct the record. They didn't. They won't. They are, after all, lawyers.
1.11.2006 6:09pm
David M. Nieporent (www):
You probably think that Paladin Press should have gotten off without consequences for their actions.
Well, maybe I "probably" think that, but I definitely think that people who argued in favor of that view -- including the ACLU -- are not secretly big fans of murder-for-hire. And I "probably" think you agree with me on that point. You may think the ACLU's position was wrong, but I don't think you honestly believe that the ACLU had ulterior motives beyond protecting free speech when it supported Paladin's position. So why make the similarly unsupportable argument with respect to this NAMBLA case? (Other than ACLU DS, I mean.)
There comes a moment--and I will admit that there is no bright line distinguishing the two sides--where detailed instructions on how to do something antisocial are not a social good. If someone uses those instructions to injure another person, it is perfectly legitimate to hold the publisher responsible for their actions.
Out of curiosity, do you feel that way with regard to firearms? Do you oppose the law I cited -- the Protection of Lawful Commerce Act -- because you think that "there comes a moment where… it is perfectly legitimate to hold the [manufacturer] responsible for their actions"?

And how many laws that they cited in that footnote has the ACLU agreed should survive heightened scrutiny?
As I stated, the ACLU did not challenge the Romeo and Juliet law at all, but only the differential application of it based upon sexual orientation.
More importantly, why does a minor's liberty interest play into this at all?
1) They didn't say the minor's liberty interest; they said the teenager's liberty interest.
2)It's pretty hard -- despite the implications of Bill Clinton's tortured interpretation of the definition of "sex" -- for a minor to have sex with an adult without an adult having sex with a minor.
1.11.2006 6:13pm
Clayton E. Cramer (mail) (www):

Second, the intent behind a law is part of the justification that the Supreme Court uses to invalidate or uphold that law. A good example of this is the "moment of silence" case. In the district court, the sponsor of the bill in the state legislature said the purpose behind the law was to get prayer back in school. The Court invalidated the law because the purpose behind was religious. Thus if the Court ruled on the Sedition Act they could have looked at the intent behind and thus invalidated.
Did the Court do that back then? I've read quite a number of early Republic state supreme court cases, and I can't recall seeing much effort to strike down nominally valid laws based on intent. Demonstrating that the intent of the Sedition Act was to suppress legitimate dissent (as opposed to borderline treasonous statements) would have been difficult. As much as some people try to portray the Sedition Act as tyrannical Federalists suppressing reasonable and decent Republicans, that wasn't the case. The U.S. was engaged in an undeclared war with France, and the country was (if you are to believe some of the debates in Congress) on the edge of civil war. Some Republicans were definitely too cozy with the French government, and there is evidence that Alexander Hamilton was operating as a British agent. (Agent 7, not 007.)
1.11.2006 6:13pm
Clayton E. Cramer (mail) (www):

As to your point about incorporation of the ninth amendment, Rep. Bingham's opinion on whether what rights are incorporated means nothing to me. The Supreme Court's opinion on which rights are incorporated means a lot more to me.
So the statements made by the floor manager--and upon which we may presume the rest of the House was voting either yes or no--means nothing to you. But the decision of a Supreme Court many years later, made up of unelected judges, who in one of those cases were looking for an excuse to release a bunch of Klansmen for mass murder--that means a lot to you. How liberal of you.
1.11.2006 6:16pm
Clayton E. Cramer (mail) (www):

And I "probably" think you agree with me on that point. You may think the ACLU's position was wrong, but I don't think you honestly believe that the ACLU had ulterior motives beyond protecting free speech when it supported Paladin's position. So why make the similarly unsupportable argument with respect to this NAMBLA case? (Other than ACLU DS, I mean.)
Because of their brief in Limon. Because of their efforts to prevent the Boy Scouts from protect children from molesters. Yeah, yeah, it's all bigotry, you are saying, but the fact is that the Boy Scouts have long had a problem with molesters becoming Scoutmasters.


Out of curiosity, do you feel that way with regard to firearms? Do you oppose the law I cited -- the Protection of Lawful Commerce Act -- because you think that "there comes a moment where… it is perfectly legitimate to hold the [manufacturer] responsible for their actions"?
Certainly. The Protection of Lawful Commerce Act allows civil suits against manufacturers, wholesalers, and retailers who violate the laws about transfer of firearms. Bullseye Firearms, who received the Bushmaster rifle that was used in the DC sniper case, had huge number of guns come in--and then disappear. Enough that it is hard to believe that the owner didn't notice his inventory walking away. That wasn't the fault of Bushmaster, who obeyed all the laws. It may well be the fault of Bullseye, and there's no reason for that suit to stop. The Act in question wouldn't affect such a suit, if you could establish negligence in failing to account for many hundreds of missing guns.

One of the "Ring of Fire" handgun makers went bankrupt a couple of years back because an employee stole something like 9000 handguns from the factory over a year or two period, and sold them illegally. I could see how you might not miss a few handguns that disappeared, but 9000? At least negligence.


As I stated, the ACLU did not challenge the Romeo and Juliet law at all, but only the differential application of it based upon sexual orientation.
So why raise the question of "liberty interest"?


1) They didn't say the minor's liberty interest; they said the teenager's liberty interest.
Why raise it, if not to protect the adult?

2)It's pretty hard -- despite the implications of Bill Clinton's tortured interpretation of the definition of "sex" -- for a minor to have sex with an adult without an adult having sex with a minor.
Yup. That's why creating a liberty interest in a teenager having sex (clearly referring to the minor) effectively creates a liberty interest in being able to manipulate children into sex.
1.11.2006 6:26pm
Clayton E. Cramer (mail) (www):
David M. Nieporent wrote:


1) They didn't say the minor's liberty interest; they said the teenager's liberty interest.
Technically correct, but misleading. (You are a lawyer.)

Here's what the brief said:

While a teenager's constitutional rights may be more limited than an adult's in some circumstances, and while the state is more likely to have a compelling state interest that justifies intruding upon a teenager's rights, it is well established that teenagers - like adults - have a due process liberty interest in being free from state compulsion in making these types of personal decisions.
If they are talking about the rights of Limon (the adult who pursued sex with the minor after being told "No"), why distinguish "teenager" from "adult"? They are talking about the minor.
1.11.2006 6:31pm
Public_Defender:
Cramer argues:
A group of historians filed the brief that the Supreme Court used for this. Of course, I presume that Public Defender knows the art of filing briefs. From the outside, it looks like everyone just showed up at the Court, unaware of what others were going to say. That's not the way it usually works. Keeping briefs within the prescribed limits means that all the different groups get together before, and coordinate who is going to say what.

In any case, even if the ACLU had no idea that a false statement was being made in a brief filed by an ally, they have an obligation to correct the record. They didn't. They won't. They are, after all, lawyers.
You didn't say that the first time. You were trying to argue that the ACLU itself had falsified its brief. Now you say it was someone else, but that the ACLU should have corrected another group's "mistake." That is dishonest. That is how a demagogue argues.

And how do you know the ACLU knew the other amicus was "false"? The distinction in the way gays and straights were treated by law was not any part of the ACLU's argument, so why should they fact check a brief of a non-party that was irrelevant to the ACLU's argument?

Also, by your logic, we should blame every other party and amicus for the same "falsification" (and given your truth-telling ability, I have to put that in quotes), since they could have read and corrected the same brief.

You have revealed yourself to be little more than a conspiracy-theory, tin-foil-hat con-artist.
1.11.2006 6:36pm
Clayton E. Cramer (mail) (www):
Public Defender, of course, doesn't dare admit that his side relies on lies to win Supreme Court decisions.
1.11.2006 6:38pm
Public_Defender:
Cramer writes:

In any case, even if the ACLU had no idea that a false statement was being made in a brief filed by an ally, they have an obligation to correct the record. They didn't. They won't. They are, after all, lawyers.

I missed the sheer lunacy of this statement. Even if the ACLU doesn't know of an "error" made by someone they don't represent they have an obligation to correct it?

And once again, if you blame the ACLU, you have to blame the lawyers for every other party and amicus on both sides of the case.
1.11.2006 6:44pm
Clayton E. Cramer (mail) (www):

Now you say it was someone else, but that the ACLU should have corrected another group's "mistake." That is dishonest. That is how a demagogue argues.
No, it's a mistake. I was responding to another discussion, and referred to the false brief--which you are correct, was not by the ACLU, but by one of the other parties trying to get the Texas homosexual sodomy law overturned.

By the way, your side never admits errors of fact. I notice that after pointing out that Noah Klein was incorrect--there has been a federal level majority vote on abortion--he suddenly leaves. (By the way, I opposed that federal partial-birth abortion ban, because except for territories, federal property, and perhaps federal funding, this isn't the federal government's job. It belongs to the states.)

David M. Nieporent claimed that the "liberty interest" claim of the ACLU in Limon referred to the teenager--implying the adult. I just quote the sentence in question, and it is clearly referring to the minor who was the victim of this crime. But he's not going to admit that he was wrong, is he?
1.11.2006 6:48pm
Public_Defender:

Public Defender, of course, doesn't dare admit that his side relies on lies to win Supreme Court decisions.

I only lie when so instructed by the ACLU's Department of Lies and Falsification. All liberals consult the DOLAF before filing briefs.

There. Now our secret is out.
1.11.2006 6:48pm
Clayton E. Cramer (mail) (www):

I missed the sheer lunacy of this statement. Even if the ACLU doesn't know of an "error" made by someone they don't represent they have an obligation to correct it?
Funny, but I recall reading somewhere that ABA has a code requiring lawyers to make only full, complete, and truthful statements to the court. I would assume that this includes an obligation to make sure that other statements on the same side as you are also correct.

By the way, anyone who had spent even a little time researching the subject would know about the Colonial sodomy statutes. But I guess letting some lies pass to achieve your goals is okay, isn't it?

Of course, if you don't believe that there is any objective truth, what's a few details?
1.11.2006 6:51pm
Noah Klein (mail):
Clayton:

When I researched Rep. Bingham, I found that he was legislator in 1970's, unless there was something Rep. Bingham. This Representative's opinion from the 1970's has no effect on the previous Amendment to the Constitution. If it is a different Representative, can you provide evidence of his floor statement?

Noah
1.11.2006 8:01pm
Noah Klein (mail):
Clayton:

Don't impugn my character about the response to the federal level majority supporting an anti-abortion measure. Firstly, you know I was talking about the right to an abortion and not some regulation regarding abortion. I brought the majority thing in response to your calling me insane, irrational and various other remarks and my point was that my position is not insane, irrational or anything else. I notice that you guys are so selective in what you quote and how define things. Come on. I have already admitted to mistake above. When pointed out to be wrong, I said so. Stop lying.

Noah
1.11.2006 8:11pm
Medis:
David N.,

Originally, I thought it might just be ill-considered rhetoric, but based on Clayton's response to my post above, it seems that he really believes the ACLU is trying to promote child molestation.

I'm not sure that makes him delusional in the clinical sense, but I'm satisfied that Eugene's "diagnosis" is correct.
1.11.2006 8:38pm
Jon Rowe (mail) (www):

My point is that the states that ratified the First Amendment didn't bother to repeal their criminal libel statutes, nor did the courts strike them down for violating the First Amendment. Why do you suppose that was?


Let us keep in mind a jurisprudential premise that Cramer posits: A specific type of original intent -- what Jack Balkin has termed "original expectation originalism" --where one looks at the practices which were in place when a particular broadly worded provision of the Constitution (like Freedom of Speech) was ratified, and remained in place for some time thereafter, and then assumes arguendo those practices must be constitutional.

This most often results in interpreting a broadly worded provision of the Constitution in the narrowest sense.

Now, this is a legitimate modality for interpreting the Constitution, but what Cramer et al. (nor Bork or other such originalists) have not established is that their way represents the only proper way, as opposed to being one of a number of different legitimate methods.

I should note that even Scalia doesn't adhere to this theory and instead supports a modified version of the "Living Constitution" where the meanings of broadly worded provisions can and do change over time, but only if those "rights" become deeply engrained in our nation's traditions.

It's also possible that when our Founders posited a general norm in a broadly worded provision of the text, it's meaning, taken to its logical conclusions, could indeed hold present conventional practices at the time the text was passed to be unconstitutional.

As Justice Souter wrote, "those practices prove, at best, that the Framers simply did not share a common understanding of the Establishment Clause, and, at worst, that they, like other politicians, could raise constitutional ideals one day and turn their backs on them the next."

And Souter has none other than James Madison, the father of the Constitution, on his side. From his Detached Memoranda on the question of whether Congressional Chaplains are constitutional:


Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom?

In strictness the answer on both points must be in the negative. The Constitution of the U. S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation.

The establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles: The tenets of the chaplains elected [by the majority] shut the door of worship agst the members whose creeds &consciences forbid a participation in that of the majority. To say nothing of other sects, this is the case with that of Roman Catholics &Quakers who have always had members in one or both of the Legislative branches. Could a Catholic clergyman ever hope to be appointed a Chaplain? To say that his religious principles are obnoxious or that his sect is small, is to lift the evil at once and exhibit in its naked deformity the doctrine that religious truth is to be tested by numbers. or that the major sects have a right to govern the minor.
1.11.2006 9:04pm
mikem (mail):
"Eugene's "diagnosis" is correct."
If anything, it has shown that there is such a thing as Clayton Cramer Derangement Syndrome among those with ACLU Sycophant Syndrome.
1.11.2006 9:19pm
Medis:
mikem,

So do you also think the ACLU is actually trying to promote child molestation?
1.11.2006 9:25pm
Public_Defender:
Cramer writes:

Funny, but I recall reading somewhere that ABA has a code requiring lawyers to make only full, complete, and truthful statements to the court. I would assume that this includes an obligation to make sure that other statements on the same side as you are also correct.

By the way, anyone who had spent even a little time researching the subject would know about the Colonial sodomy statutes. But I guess letting some lies pass to achieve your goals is okay, isn't it?

Of course, if you don't believe that there is any objective truth, what's a few details?

Now you are just making stuff up about legal ethics. I challenge you to find any authority that says that one amicus are responsible for fact checking all other amicus briefs supporting the same side.

Remember, we are having this discussion because you falsely accused the ACLU of making assertions that the ACLU did not make.

When I proved that you were misrepresenting the facts, you changed arguments to claim that the ACLU must have had a role in the brief you questioned.

When I pointed out you had no facts to support that argument, you said that the ACLU was dishonest for not fact-checking a brief it did not write.

You are living, breathing (and typing) proof of ACLU Derangement Syndrome.
1.11.2006 9:28pm
Medis:
PD,

I'm actually confused at this point about what Clayton is trying to achieve. He has to suspect that at a blog full of lawyers, a lot of them will know that a party's attorneys aren't responsible for amicus briefs, and they will call him on that.

So, that seems like a senseless argument to try.
1.11.2006 9:35pm
David M. Nieporent (www):
David M. Nieporent claimed that the "liberty interest" claim of the ACLU in Limon referred to the teenager--implying the adult. I just quote the sentence in question, and it is clearly referring to the minor who was the victim of this crime. But he's not going to admit that he was wrong, is he?
I "implied" no such thing, and your misreading of me is equivalent to your misreading of the ACLU's brief. The ACLU's sole argument was that because teens have a "due process liberty interest" in sex, restrictions on that right are subject to heightened scrutiny. They at no point suggested that there was a right for adults to have sex with minors, or a right for minors to have sex with adults. Indeed, they accepted the Romeo and Juliet law. Their argument was solely about disparate treatment of homosexuals and heterosexuals under the Romeo and Juliet law. When are you going to admit YOU were wrong?

Because of their brief in Limon.
Which you are again misrepresenting.
Because of their efforts to prevent the Boy Scouts from protect children from molesters.
Unless "molesters" is code for "gay," this is what is known in the real world as a "lie." And if it is code for gay, then it's known as "bigotry."
1.12.2006 12:35am
Public_Defender:
Medis writes:

I'm actually confused at this point about what Clayton is trying to achieve. He has to suspect that at a blog full of lawyers, a lot of them will know that a party's attorneys aren't responsible for amicus briefs, and they will call him on that.

So, that seems like a senseless argument to try.
I think our biggest mistake was taking Cramer seriously. We mistook his zeal and good writing for intellectual vigor.

On the other hand, Cramer proved the professor's point about ACLU Derangement Syndrome. So the post achieved its intended purpose.
1.12.2006 7:42am
Deoxy (mail):
"You really need to read what I said before you say it is irrational or dishonest or crazy or not the law."

I Have read everything you have put in this thread. I stand by what I said; I stand by the painfully obvious examples I have given:

"government may not discriminate based on race" has become "government MAY discriminate based on race (just not TOO overtly, OK?)"

How is that possibly NOT redefining the Constitution to mean what they WANT it to mean? They have made obvious words mean their EXACT OPPOSITE, just as "freedom" and "slavery". Until you can reconcile that single decision (not to mention several others, such as Kelo and even the amazing turnaround on "separate but equal" with no change of the Consitution), I can only term you as irrational or dishonest, based on the simple fact that you say they can't define the Constitution however they want. THAT IS WHAT THEY HAVE DONE, and you are defending it, saying that ISN'T what they have done, yet ignoring my painfully obvious example.

You claim to be rational and not crazy. OK, that leaves dishonest, and I am done with this.
1.12.2006 11:36am
Clayton E. Cramer (mail) (www):
Noah Klein writes:


When I researched Rep. Bingham, I found that he was legislator in 1970's, unless there was something Rep. Bingham. This Representative's opinion from the 1970's has no effect on the previous Amendment to the Constitution.
Not much of a researcher, I guess. Try entering the string:

"Fourteenth Amendment" Bingham

in Google. You will find out that Rep. John Bingham was the primary member of the House responsible for getting the Fourteenth Amendment passed.

That you are so ignorant of the topic--and that your research skills are so limited--tells me quite a bit.
1.12.2006 11:47am
Clayton E. Cramer (mail) (www):


Because of their efforts to prevent the Boy Scouts from protect children from molesters.


Unless "molesters" is code for "gay," this is what is known in the real world as a "lie." And if it is code for gay, then it's known as "bigotry."
No, it's not bigotry. Most homosexuals aren't molesters, but molesters are disproportionately homosexuals--typically 20% to 30% of molesters are homosexual.
1.12.2006 11:51am
Clayton E. Cramer (mail) (www):

I "implied" no such thing, and your misreading of me is equivalent to your misreading of the ACLU's brief. The ACLU's sole argument was that because teens have a "due process liberty interest" in sex, restrictions on that right are subject to heightened scrutiny. They at no point suggested that there was a right for adults to have sex with minors, or a right for minors to have sex with adults. Indeed, they accepted the Romeo and Juliet law. Their argument was solely about disparate treatment of homosexuals and heterosexuals under the Romeo and Juliet law. When are you going to admit YOU were wrong?
When are you going to admit that their argument was about the rights of minors to have make decisions about whether to have sex or not? The language is very clear on this. It was completely unnecessary to make their equal protection argument--unless the minor was being prosecuted.

I'm done with this bunch. Every time I start to kid myself that liberals are fundamentally decent people with a different perspective, I run into a bunch like this, and I realize, no, you are fundamentally evil people, making excuses to defend child molestation.
1.12.2006 11:55am
Public_Defender:
Cramer writes:

[Y]ou are fundamentally evil people, making excuses to defend child molestation.
No comment. I just thought the quote was worth re-reading.
1.12.2006 1:35pm
Bob Loblaw (www):

you are fundamentally evil people, making excuses to defend child molestation.
Cramer, you are such a joke.
1.12.2006 2:19pm
Noah Klein (mail):
Deoxy:

You say: "government may not discriminate based on race" has become "government MAY discriminate based on race (just not TOO overtly, OK?)"

As a lawyer or someone who blogs with other lawyers, you should know what the amendment says. The amendment says "nor deny to any person within its jurisdiction the equal protection of the law." You also know about "compelling state interest" and "strict scrutiny." You know that if the state has a compelling interest it may discriminate between people. Race and other categories has a strict scrutiny factor. In the affrimative action cases, the court has said that the state's compelling interest meets the strict scrutiny standard.

The Kelo case is one that I also disagree with, but let me go into it and show that its opinion is not irrational or dishonest. The 5th amendment says "nor shall private property be taken taken for public, without just compensation." The issue hear is the definition of "public use." The Court does not say that property can be taken for "private use," it just defines "public use" differently than you or I would. The state supreme court decided:

Finally, adhering to its precedents, the court went on to determine, first, whether the takings of the particular properties at issue were "reasonably necessary" to achieving the City's intended public use, id., at 82, 843 A. 2d, at 552—553, and, second, whether the takings were for "reasonably foreseeable needs," id., at 93, 843 A. 2d, at 558—559. The court upheld the trial court's factual findings as to parcel 3, but reversed the trial court as to parcel 4A, agreeing with the City that the intended use of this land was sufficiently definite and had been given "reasonable attention" during the planning process. Id., at 120—121, 843 A. 2d, at 574.

The three dissenting justices would have imposed a "heightened" standard of judicial review for takings justified by economic development. Although they agreed that the plan was intended to serve a valid public use, they would have found all the takings unconstitutional because the City had failed to adduce "clear and convincing evidence" that the economic benefits of the plan would in fact come to pass. Id., at 144, 146, 843 A. 2d, at 587, 588 (Zarella, J., joined by Sullivan, C. J., and Katz, J., concurring in part and dissenting in part).

The Supreme Court decided that "private use" is "on the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation." They decided "public use" is "it is equally clear that a State may transfer property from one private party to another if future "use by the public" is the purpose of the taking." You and I may disagree with the Court, as we do. I think they misinterpreted the purpose behind that part of the 5th amendment, but it is certain that they didn't just make up what the amendment says and they did not ignore what the amendment says. This is not an irrational or dishonest or evil opinion it is just a wrong one. Also, one that Congress with clear bipartisan majorities is trying to confront and overturn.

The Constitution does not say what you think it says, it says what it says. The Court did not in this case or any other case reject or ignore what the constitution says, it interpreted. You may not like the interpretation, but it is not dishonest or irrational or crazy. It is an interpretation that is supported by the Supreme Court and many other legal scholars. As I said before, you know what means when you scream "everybody else is crazy."

Clayton:

I was wrong. Not the first time, won't be the last. Yet you did me a disservice when you did not give me John Bingham's first name. Second, since most your claims have be stupid and proven wrong, I did see a good cause to do serious research.

Now as to your point about the ninth amendment and its incorporation"

Rep. Bingham: "The first draft of the proposed Fourteenth Amendment was debated in the House for three days, beginning on February 27, 1866. Bingham, its author, argued on its behalf that previously 'this immortal bill of rights embodied in the Constitution, rested for its execution and enforcement hitherto upon the fidelity of the States.'"

Representative Robert Hale of New York saw no need for the amendment, because he interpreted the existing Bill of Rights to bind not just Congress but also the States: "Now, what are these amendments to the Constitution, numbered from one to ten, one of which is the fifth article in question? . . . They constitute the bill of rights, a bill of rights for the protection of the citizen, and defining and limiting the power of Federal and State legislation."[29]

Bingham responded that the proposed amendment would "arm the Congress ... with the power to enforce this bill of rights as it stands in the Constitution today."

Here is the cite

I don't see how the Fourteenth Amendment is from Bingham's perspective not meant to apply to all of the first ten. The reason I at first did not apply the tenth when I discussed this point is because it already applied to the states, since it protected their powers. The Supreme Court has never ruled on whether the Ninth Amendment was incorporated, because no case has ever been brought before it based solely on the ninth amendment. If you have evidence showing I am wrong in this reading, please provide the evidence and a link showing me I am wrong.

Noah
1.12.2006 5:28pm
Jon Rowe (mail) (www):
Noah:

-- In the affrimative action cases, the court has said that the state's compelling interest meets the strict scrutiny standard. --

Was that legitimate? I don't think so.

As far as the 9th and incorporation is concerned, get Randy Barnett's book, Restoring the Lost Constitution.

Cramer is right that it's only the First 8 Amendments that are incorporated against the states, but the results are the same as though the 9th Amendment were incorporated.

The P or I Clause incorporates the First 8 Amendments of the Bill of Rights (as specific privileges or immunities), but also does more than that. The word "immunities" is synonomous with natural rights which are so numerous that they are literally unenumerable. So the First 8 Amendments are a minimum not a maximum of what rights we take against state and local governments. So the P or I Clause is like a 9th Amendment against the states without technically incorporating the 9th.
1.12.2006 7:51pm
Neal Lang (mail):
The goal of the ACLU is to enforce Jefferson's "wall of seperation."

And just where may we find this "wall of seperation" in our Constitution?

Did you know that after President Thomas Jefferson wrote about this "Wall of Seperation" to the Danbury Baptists, he attended Sunday services at the largest Christian Church in Washington, DC. The services were held in the Capitol Building. Amazing! Did you always know that Jefferson represented a State that had a "State Approved" religion, and that in that State it was against the law for Catholics to serve on juries? Amazing!
I agree with the ACLU's trying to get public prayer out of school, because prayer in school, while practiced from the earliest part of our history until the court struck down, is an infringement on this choice.

Did you know that the same Congress that passed the 1st Amendment, also passed the Northwest Ordinance that mandated that the States in this terrory must provide for schools educating in religion and morality along with 4 "R", to wit:
Art. 3.
Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.

On just what Constitutional basis do you and ACLU believe that Public Schools are no place for prayers.

Did you know that before prayers were removed from the Public School - no students ever shot other students in school. Do think that was because it was hard to shoot someone you pray with, or merely because the school are no longer teaching "morality" as well as "religion"?
1.13.2006 1:57am
Neal Lang (mail):
From all of the above it should be clear that all of the rights recognized by the U.S. Constitution are not only rights against state action, but that the Fourteenth Amendment authorizes Congress to legislate protection of such rights against state action, and grants jurisdiction of the federal judiciary over cases between citizens and their states involving them. Among those rights are the right to keep and bear arms and the right to a grand jury indictment. While the Supreme Court might reasonably have confirmed this in any given case by only declaring such rights as are minimally needed to render a decision, it is important that they not fail to do so for all the rights that are issues before the court. From: Intent of the Fourteenth Amendment was to Protect All Rights by Jon Roland

Imagine that! Amazing!
1.13.2006 2:14am
Noah Klein (mail):
John:

I went to Amazon to check the Barnett book and read certain sections that were available through their preview option. It is an amazing book. It really seems to clarify for me aspects of the constitution that I had questions about. I thank you so much for exposing the book to me and I will try to get a copy as soon as I can.

I see that you are right that the ninth amendment has not yet been incorporated fully by the Supreme Court. Instead, it has used another track to allow for the incorporation of unenumerated rights. This would be a distinction without a difference, if the Court did not say that these "unenumerated rights" had to be "fundamental" and thus needed to be decided on by the Court.

Once again, thank you for pointing the book out to me.

Neal:

Next time, you cite a post made by me 4 days ago please address me so I know to whom you are talking.

The letter to the Danbury Baptists was the avenue to express his beliefs on the separation of Church and State. Why you bring this up I don't know? The Danbury Baptists were a Conneticut sect who feared that the majority of the state which belonged to the Congregationalist Church would impose their views on the Baptists. This seems like a perfect avenue to express one's ideas about the Separation of Church and State.

The policies of the state he represented and of which he was governor do not matter. Many states still discriminated based on religion, unfortunately. In fact, New Jersey was the last state to say that Jews could vote in the early 19th century. Furthermore, in the 1840's and 1850's a big controversy arose between Catholics and Protestants about which bible would be used in the public education of their children. From this rose a new political party the "Know Nothings" and a new attitude in American political thought "nativists." Unfortunately, at the time the Establishment Clause did not affect the states because it said clearly "Congress shall make no law respecting an establishment of religion..." It wasn't until the 14th amendment incorporated the establishment clause did it apply to the states.

Furthermore, the principle Jefferson expressed in the philosophy of a "wall of seperation" between church and state is pretty clear. He said:

Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all of his natural rights, convinced he has no natural right in opposition to his social duties.

Here is an analysis of Jefferson's efforts to eliminate state support for churches: "But this would not be consistent with Jefferson's past political history. An excellent example of why would be his tireless efforts to eliminate the compulsory funding of established churches in his native Virginia."

Thus when I said that Jefferson desired to have a clear boundary between church and state, I think it is pretty clear that he did. Second, I said in the quote you used above that this is the opinion that the ACLU offers. It is not an opinion that the Court has adopted fully, as far as I know, but it is a legitimate opinion. I said this in answer to people who were arguing that the ACLU were crazy and trying to destroy Christianity. I think it is clear what the ACLU's opinions are and where from where in history they infer this to be the desire of the framers. It may not be, but it is pretty clear asserting this belief is not a definition of insanity.

As to your statement on the Northwest Ordinances, any student of history knows these were passed by the Conferdation Congress and not the First Congress under the Constitution. Thus you are wrong to present this as evidence that the First Congress meant to include religion in education. Many founders did believe that religion was an important part of education. Most notably these figures included Benjamin Rush and John Adams. Yet the Northwest Ordinances were the last national education law, except for the use of land for universities, passed by Congress until the 20th century. Thus it is hard to establish that the Congress that passed the establishment clause wanted religion in education. Furthermore, even if it could be established that this was the case, it is hard to assert that the states ratified the first amendment with the understanding that the national government's laws concerning education could discriminate between religions. So when the Fourteenth amendment incorporated the establishment clause to apply to the states, it is hard to say that school-sponsored prayer in public schools would be fine under the establishment clause. This is how the Court has ruled.

Regarding kids shooting other kids in schools, I think you will find it hard to link religion or morality to this phenomenon even if it were true. Religion has been used throughout history as reason to murder. You're not going to impress me by making such a bold statement without any evidence to back it up.

Finally, I'm glad you read the Jon Roland article. I thought it was pretty interesting myself. I think you quoted that for the statement about the right to keep and bear arms. It appears true that the authors of the amendment wanted to incorporate that amendment to apply to the states. Thus far the Supreme Court has not obliged the authors of the amendment. Yet even if the Court had obliged them, the Court would have incorporated the whole amendment including the "well-regulated" clause and thus my point is made. Please don't bring that into this forum. We already had a lengthy debate about this and I will not engage you anymore on the RKBA because you can't say anything more to me and I can't say anything more to you that will change our opinions.

Noah
1.13.2006 6:26am
Jon Rowe (mail) (www):
-- Did you always know that Jefferson represented a State that had a "State Approved" religion, and that in that State it was against the law for Catholics to serve on juries? Amazing! --

What state was that? I was under the impression that Jefferson was from Virginia, and he and Madison fought and suceeded in disestablishing the Anglican Church. Jefferson and Madison both loathed state establishments.
1.13.2006 10:34am
Richard Aubrey (mail):
Just to make sure we all understand the ACLU, have you looked at them and S.E.R.E.?

It's kind of hard to figure out how an adult could be so dumb. Perhaps they know better and hope the rest of us don't.
1.13.2006 3:05pm
Noah Klein (mail):
Richard,

That is weird. I have never heard anything so crazy as to say that our soldiers are raping women and little boys. I am not going to defend the ACLU here, but just say perhaps they are not expressing this strange position, but just asking for the release of the documents.

BTW, isn't S.E.R.E. just an element of Seal training? I don't see how S.E.R.E. would have anything to do with interrogation of enemy combatants beyond Seals applying practices they learned in the training and I'm pretty sure the Seals don't get raped in training.

Noah
1.13.2006 7:41pm
Richard Aubrey (mail):
Noah. Two possibilities. The ACLU hasn't a clue because they think military stuff is icky and they aren't allowed to know anybody who actually knows stuff like this. So either they got rolled by a practical joker, or they just screwed up.

The other is that they know exactly what S.E.R.E is. Survival, Evasion, Resistance, Escape training. Very, very hard training. Dreaded.
But they hope that, by implying all sorts of awful stuff, that others who don't know will be persuaded to believe it's something else entirely.

IMO, they're either liars or stupid. I can't think of a good reason to do this.
1.13.2006 7:50pm