Law on Blog 



[ Links ]
Covenant Media Foundation

[ Blogs That I Read ]
Rabbi Saul
The Blog According to John
Aaron's Baseball Blog
Whilin' Away the Hours
Dr. G's Blog
Le Sabot Post-Moderne Societas Christiana
Just Mark
Contra Tyrannus
View from Peniel
Doug's Blog
40 Bicycles
The Whirlwind Musings of a Reformed Catholic

"The Law of the Lord is perfect, reviving the soul; the testimony of the Lord is sure, making wise the simple; the precepts of the Lord are right, rejoicing the heart; the commandment of the Lord is pure, enlightening the eyes." -- Psalm 19:7-8 (ESV) --

Thursday, May 27, 2004


Well, the polls out here show that Bush's popularity has plummetted to extremely low standards, even for California. A lot of people disapprove of the way he is handling the war in Iraq, including some Christians whom I respect.

I don't blame them. With some exceptions, I did support the wars on Afghanistan and Iraq (the exception is that they were undeclared war---the U.S. Constitution is clear that Congress declares war, and if taking out two governments is not an act of war, I don't know what is) in response to September 11th. The problem with the latter was that the objective became extremely ambitious. When the war on Iraq was just about to begin, I had heard on the radio that people within the Bush Administration hadthis vision that if we planted the seeds of democracy in Iraq, and it became stable, then there would be a domino effect that would spread to the rest of the Middle Eastern countries. This is of course, the reason why the purpose of invasion switched from searching for weapons of mass destruction to freedom for the Iraqi people.

This is Bush's first mistake, but I'm not surprised he made it given the Enlightenment influence that permeates modern Christianity. Freedom...dare I say salvation?...does not come from politics. Unfortunately, that's all you've heard from the Administration: Messianic language that is reserved for Jesus Christ alone. The United States is not the grantor of freedom: God is. It's no mistake that the Liberty Bell has a quote from Leviticus there. One great thing about reading the original writings and writings of the time: they are devoid of the revisionist history that is today. So, what's happening today in Iraq is an example of what happens when man tries to play God. The Iraqi people do not need democracy: they need the Gospel, and they need it critically.

I know that President Bush thinks he is doing the right thing. He was correct in his speech right after the September 11th attacks that God is not on the side of evil, but presuming the attributes of God is not appreciated, either. Besides, even on a pratical level, does anyone think that an organization that runs the Post Office could rebuild an entire country with a radically different form of government?

Tuesday, May 11, 2004


Well, I guess I have decided to write on the Moore case. There are some interesting points that the judges try to make.

The first is the curious remark, "Because of this country's 'history and tradition that dates from the settlement of the North American Continent,' the Founders included in the Bill of Rights an Establishment Clause which prohinbits any law 'respecting an establishment of religion'" (emphasis mine). The internal quote is from the 1989 case County of Allegheny v. American Civil Liberties Union. (I'm not going to do the formal italicizing of court cases.) This was a very strange case because the Supreme Court essentially ruled that the relative placement of Nativity scenes to secular items on government land dictates its constitutionality. Now this case didn't et the precedent, but it certainly affirmed that Establishment Clause cases have to be issued on a case by case basis. This, of course, has philosophical problems.

Of course, the 11th Circuit does not quote the Clause correctly. It does not prohibit the enacting of any law respecting an establishment of religion. It only prohibits Congress from doing so. The 11th Circuit's assertion did not become reality until 1947, and this under Supreme fiat when the Court stated that the 14th Amendment's Due Process Clause applies the Establishment Clause to the States. There of course was no traditional or historical precedent within the Constitution to do so. Even if one grants the legitimacy of the 14th, it did not overrule the 10th. It did place the federal government as a watchdog on the States, but it did not force the Federal Constitution on the States. Even if the Radical Republicans wanted that (and they most certainly did), given the 10th, it must be stated.

The majority of the decision then deals with current case law and applies it to the issue at stake, but what is extremely interesting about the 11th Circuit's decision is its final section. There are a couple of things that need to be said.

On the one hand, Chief Justice Moore is incorrect when he says (quoting the 11th Circuit's words) the lower courts injunction "contravene the right and authority he claims under his oath of office to follow the state and feeral constitutions "as best he understands them, not as understood by others." As an absolute statement, this is patently false. The U.S. Constitution does give the Supreme Court authority to judge cases that arise under the constitution (and by extension, the power is given to the lower courts). Therefore, when the Court does issue an opinion about the Cosntitution through a case that is broguht in accordance with the Constitution, the Court can rule on that. Furthermore, this will apply to the States if they contravene anything that is explicitly denied to them by the U.S. Constitution. Therefore, as a blanket statement,Chief Justice Moore is incorrect.

On the other hand, this does not validate the 11th Circuit's case. The Court then compares Moore's position to those of the Southern governors during the time of court-ordered desegregation. Of course, there is a false analogy here. A cursory reading of the 14th Amendment's equal protection clause gives the courts power to rule discriminatory laws based on race (and this is giving extremely minimal support that the Radical Republicans even cared about the equal protection of the black people (they didn't)), and hence, those cases were brought through the constitutional means. The issue here is whether the Constitution would allow for this case to be decided by the federal courts. It is not simply constitutional because a court says so.

The analogy fails, then, when any court issues an order that violates the Constitution itself. The problem is, given the 11th Circuit's position, the federal courts have unquestionable authority. Even though there are higher and lower courts, the federal courts are ultimately supreme regardless of what the Constitution says. The people who have been entrusted to interpret the Constitution have become the sole infallible authorities on what the Constitution means and what it always meant. The Eleventh Circuit's reliance on Cooper v. Aaron and Sterling v. Constantin, though in theory nice, is philosophically bankrupt. In both cases, as the 11th Circuit notes, "if a state Governor could nullify a federal court order 'that the fiat of state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases.'" Again, theoretically, this correct. The problem is that if the Constitution is a "living document" as Justice Brennan once wrote, or has evolving standards, then the Constitution is not the supreme law of the land but rather the fiat of individuals in robes become the Supreme law. If this is the case, than anything can be ruled constitutional, even if it apparantly violates the Constitution. This is all the more apparant when the U.S. Supreme Court recently allowed the campaign finance law to be declared constitutional. The reasoning is frightening. Even if Congress could regulate speech because of corruptive influences, the Court went much farther and allowed regulation even when there is the appearance of corruption. Now of course, what is the definition of "appearance?" Who will decide? Of course, it will be the Courts, and fiat of judges will be the law. And of course, the 1st Amendment says "Congress shall make no law.." It sounds like the problem that plagues Roman CCatholicism, quite frankly.

So see where the malaise of federal court thinking has brought us? In the name of the Constitution, "Congress shall make no law..." means every government official, but at the same time, "Congress shall make no law..." means its O.K. to make a law when there is the appearance of corruption. Doublespeak, as someone once said.

If the 11th Circuit's position is correct, then we are no longer the "land of the free, home of the brave," but instead are "land of the slaves, home of the cowards" who believe they are free only because the federal government has told them that.

Friday, May 07, 2004

I have a lot of problems with Bush's policy in Iraq, but not the same reasons that the Bush-haters have and some of my politically conservative and Christian bretheren have about the war. However, you think that Sen. John "Youuuuu Raaaaaaaaaaaaaaaang?" Kerry would do this? Somehow, I don't think so.

(Note, scroll down a bit, and the picture may be gone after a few days.)

This page is powered by Blogger.