Strengthening Constitutional Self-Government

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Constitutional Conservatism

Never mind the First Amendment as it has been incorporated through the Fourteenth.  Herman Cain, who claims to so love our Founders, who do well to think about the principles behind one on the noblest documents written by the Father of our country.

 

The citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy--a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship.

 

It is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights, for, happily, the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support.

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Discussions - 36 Comments

I think you are mistaken. Cain is making a distinction between religions which accept the authority of the American Constitution and laws, and those which do not. That mosque in Tennessee, I understand, is immense. There is every reason to be concerned that more is going on than worship. Muslim leaders in the United States have made clear their intention to replace American law with Sharia law. Those mosques must at least be watched, not to mention infiltrated, to keep tabs on their subversive activities. Cain is not appealing to bigotry but to Americans' sense of fairness. Remember that religious toleration was first proposed among Bible believing people, and depended on Christian virtues for its success. Can we with assurance make that claim about today's militant Muslims?

The implication that Islam is incompatible with the Constitution is as bigoted as thinking Catholics are Papal puppets and born-again Christians are all abortion clinic-bombing terrorists or Jews are part of some obnoxious conspiracy. The idea of treating all Muslims as subversive just because people who commit acts of terror are often Muslim is as dangerous as the arguments for forbidding all guns just because people who commit crimes very often use guns. To ban mosques because some elements of Islam wish to enforce Sharia Law is akin to banning temples because of Mormon polygamists or churches because of the Westboro Baptists. That same Constitution forbids the government from punishing the many for the (grievous, unforgivable) trespasses of the few. Such bigoted persecution only pushes them further towards the same belief that the two are incompatible by the very fact that we are picking and choosing who the Constitution's protections are applied to.

Mr. Cain's flirtation with communities deciding which religions are and aren't welcome has less to do with constitutional, conservative federalism than it has to do with the same type of road that Judge Douglas and the other popular sovereignty ilk of that era travelled.

I think you're giving too much creedence to the arguments of Westernized Muslims who desperately want to believe they can claim the benefits of the West (unparalleled prosperity and freedom) without letting go of their core beliefs. Can a religion that very unequivocally seperates the universe into the Dar al-Islam and the Dar al-Harb, has never believed in a seperation of Church and State, and has never evolved past treating non-Muslims as, at best, second-class citizens really be incorporated into a free society? I don't think so, but I'd love to hear a convincing argument to the contrary. Christ's Kingdom is not of this world; Mohamed's most certainly was.

You're making the same agruments that weaklings of the Weimar Republic made as the Nazis rose to power: if we don't tolerate their beliefs and deny them admission to the political process we're just as bad as we claim they are. False. Those that tolerate statists and totalitarians find that statists and totalitarians love free elections until they win one.

Please do read up on the Muslim Brotherhood, that most patient and ambitious of enemies. There are ways other than acts of terrorism to overthrow a society, and they are actively engaged in them.

As far as Herman Cain goes: he's weak sauce. Please drop out of the race now because this is, at the moment, a distraction.

That is not to say that all or most or a plurality of Muslims in the USA favor Sharia over the Constitution (I imagine most of them would say they are compatible), but those who do advocate abolishing the Constitution or favor communities governed by Sharia (like those in Europe) should be looked into. Being a religious institution does not exempt a group from scrutinizing what they are advocating.

Fellas, if you are aware that there is a proposal to impose Sharia law, at the local level, you are free to oppose it in the electoral arena and failing that, to seek to have it stricken down by the courts. I really like your chances.

If you or Herman Cain are aware of criminal activities at this or that mosque (or any other assembly - secular or of any religion) you are free to report it to the authorities - indeed run don't walk. That's not what we are talking about.

But the idea that local assemblies or courts should be able to bar any particular religion from building places of worship (as opposed to the more mundane questions of land use regulation that might be involved in the matter and would be neutral as to religion) violates the spirit of religious toleration as exemplified by Washington.

Even if a religion/sect does not itself practice religious toleration? Again, we're entering the territory which led Strauss to believe that liberalism [Western Civilization?] contained within it the seeds of its own destruction.

Once again, it matters who you let into the country. Once they are here they enjoy all the same rights as natural citizens do. While the Constitution disallows us to protect ourselves by being intolerant of those who are already here, it says NOTHING about restrictions on who can join our club. Time to change those rules, and quickly.

The implication that Islam is incompatible with the Constitution is as bigoted as thinking Catholics are Papal puppets and born-again Christians are all abortion clinic-bombing terrorists or Jews are part of some obnoxious conspiracy.

ROB, there is a mass exodus of Christians in the Near East, in spite of a modus vivendi with the Muslim majority there which had ground along for centuries. There is now wretched inter-communal violence in Nigeria and persecution of inconsequential Christian minorities in Pakistan and Indonesia (in the former state sanctioned). Did I mention the Sudan?

Meanwhile, small muslim minorities in fairly benign countries (e.g. the Philippines and Thailand) have elected to start insurgencies. In Britain, there is fragmentary evidence that the younger generation of Pakistanis there resident is less loyal to the British state and society than have been their foreign-born parents. Did I mention the MoToons?

We are stuck with the possibility that the evolution of how a critical mass of muslims tend to think about and interact with other communal groups has rendered muslim communities as a whole tragically incompatible with everyone else. The 1st amendment ain't gonna help you with a problem like that.

Andrew, you you are aware of anyone or any collection of folks of any background or confession who are conspiring to violate the law, then bring forth the evidence. Trying to deny people facilities for peaceful worship is wrong as well as unconstitutional. If it is not peaceful then the same rules apply to everyone.

Our nation was founded on the self-evident truth that we are endowed by our Creator with unalienable rights. So, how do we apply "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" to religions that reject the principle of unalienable rights, or self-evident truths for that matter?

To what degree Muslims act on their beliefs varies, but if one is a Muslim, one believes that the Declaration and the Constitution are sinful and blasphemous. This sort of disagreement also extends to most Eastern religions as well as atheism. In contrast, our founding documents are quite compatible with the tenets of Judaism and Christianity.

Does "free exercise" include meeting to pray for the eventual replacement of our Declaration and Constitution with another form of government but not acting to bring it about?

We cannot start picking and choosing which citizens the protections of our Constitution apply to, both because it is illegal and immoral. Yes, Muslims involved with terrorism and Priests involved with child molestation and Mormons involved with polygamy all certainly ought to be looked for and brought to justice. However, peaceful Muslims, Mormons, and Catholics should be afforded all the same protections of all American citizens, their fundamental rights to conscience and worship protected. These protections even apply to people who do not agree with their principles, from Westboro Baptists to Neo-Nazis to those who like extremist interpretations Sharia Law. Our government cannot criminalize thought; only action and, in some cases, incitement to action. So, as Pete says, if an individual is engaging in illegal activity or inciting others to violence, then there are laws against that. If an individual is trying to worship his God, let him.

There's a good scene from A Man For All Seasons worth bringing up here:
Alice More: Arrest him!
More: Why, what has he done?
Margaret More: He's bad!
More: There is no law against that.
Richard Roper: There is! God's law!
More: Then God can arrest him.
Alice: While you talk, he's gone!
More: And go he should, if he was the Devil himself, until he broke the law!
Roper: So now you'd give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast– man's laws, not God's– and if you cut them down—and you're just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

The problem here is that this is not an issue amenable to a clear solution at the level of principle.

The idea of "religion" as a distinct part of life, separate from municipal law, is a peculiar development of the Christian world. We may us the word "religion" to describe Islam, but it's not a good fit.

But as a practical matter we have to extend toleration to people who worship in mosques. So long as they accept that American law is superior to Sharia in all cases, that is not a problem. But can a good Muslim accept that? I am not so sure, why should law created by men trump law created by God.

In sum, this is not a good issue for public dicussion, as it points to the limits of the separation of "religion" and politics.

BTW, why should I be moved by the incorporation of the First into the Fourteenth by the Supreme Court? If the Fourteenth gives it the power to rewrite the Bill of Rights, where does it stop? Do the checks and balances of federalism no longer play any part in the securing of our natural rights? Or, does this protection now reside only in the wisdom of the Supreme Court?

I once had a Muslim student, from Egypt, who seemed perfectly urbane and cosmopolitan. Then I asked him about the recent post-revolution poll that showed that something like 80% of all Egyptians believe it is right that converts from Islam be killed. He agreed, arguing that anyone who would betray his religion is capable of committing any crime. That of course does not mean he would murder a convert, but don't look for him to testify against anyone who does.

This does not necessarily support the Cain position, but I think those who reflexively include Islam as a First Amendment-protected religion need to take a deep breath first. It's not enough to say just punish illegal actions....

None of which answers the question of whether, via pubic policy, certain subcultures should be allowed to take root in this country. Street crime is an aspect of social life and any society will have a background frequency of it. Certain manifestations of street crime are not inevitable. You may have to make a decision as to whether you accept a background frequency contained by the police and the courts as best they can or whether you say that the problem should not be allowed to germinate. The current mix of law, social practice, and elite attitudes often conspires against new immigrant groups finding a social niche that is passably agreeable to the host society. What you read about social relations in France, in Britain, and in Canada is disturbing.

TJH,

"Does "free exercise" include meeting to pray for the eventual replacement of our Declaration and Constitution with another form of government but not acting to bring it about?"

When they are your and my fellow citizens and they are not transgressing any law (to include incitement to violence), yes.

"why should I be moved by the incorporation of the First into the Fourteenth by the Supreme Court?:

A study of the speeches by sponsors of the Fourteenth Amendment would indicate that the amendment was designed to extend the protections of the first eight amendments to actions of state governments as well as the federal government. The Supreme Court (including originalist and Declaration admirer Clarence Thomas) recently voted to incorporate (far too late in my view) the Second Amendment's protections against actions of state government. I don't know if that moves you.

Ken, I would say it is enough to punish those who break the law - including those who commit hindering prosecution, accessory to crime, etc. It is passing strange (also unconstitutional and wrong) to collectively and preemptively punish congregants engaged in peaceful worship (and if not peaceful bring charges by all means) based on the real or potential actions of their coreligionists.

>It is passing strange (also unconstitutional and wrong) to collectively and preemptively punish congregants engaged in peaceful worship (and if not peaceful bring charges by all means) based on the real or potential actions of their coreligionists.
>
I think you may be imputing Protestant Christian categories to a fundamentally different tradition. And I wasn't justifying punishing anyone simply for being Muslim. The dilemma posed is more troubling than that. Would most Muslims, even in America, accept the principle of religious toleration? If they don't, are they owed toleration themselves? That is a very different question from whether they ought to be suppressed, harassed, or routinely spied upon. As someone else suggested, would most Muslims live up to the spirit of Washington's letter to the Hebrews? (A good exercise to ask of those of any faith, btw!)

Ken, some would and some wouldn't (on the level of notion rather than action.) Those who act against the law would be punished. Those who wouldn't... wouldn't. But local assemblies would not be able to ban facilities for peaceful worship basewd on suspicion or fear doctrinal incompatibility.

"you are aware of anyone or any collection of folks of any background or confession who are conspiring to violate the law, then bring forth the evidence. Trying to deny people facilities for peaceful worship is wrong as well as unconstitutional. If it is not peaceful then the same rules apply to everyone."

I think what AD, TJH, KT, and myself are concerned about is how nonchanlantly Pete and ROB are willing to turn a blind eye to the troubling theme existing within Islam - a theme that runs throughout time and space.
I believe I speak for all of us when I say none of us is in favor of banning mosques, persecuting Muslims, or anything silly like that, however, we recognize that Islam presents a unique problem to Western societies. The Mormon/polygamy meme is cute, but ignores the very real confrontations between the USA and Latter Day Saints - issues which were resolved only when the Mormon leadership bent to the Constitution and officially renounced polygamy.

Again, I encourage the two of you to read up on the Muslim Brotherhood - a group that very purposefully attempts to subvert Western governments from within, preferably through legal means (see: Bastiat's "The Law" if you think that's cool). Andrew McCarthy's "Willful Blindness" would be a good place to start.

"I believe I speak for all of us when I say none of us is in favor of banning mosques," Well, I'm not sure entirely about TJH but I hope so. The corollary would be that local assemblies are not allowed to ban the creation of places of peaceful worship (some mundane land use issues aside) and that Cain came out for violating the First Amendment as incorporated by the Fourteenth and the spirit of religious toleration in Washington's letter. And if that is the case, we agree on the present controversy. And if any political organization of American citizens seeks to peacefully and lawfully implement a policy agenda you find wrong, you use the tools of democratic politics (including judicial review if their proposed policies are constitutional and enacted by legislatures.)

I'm not saying that there isn't an issue with Islamic extremism or that helping Islam to adapt fully to Western society is not a difficult thing to do in many cases. I am saying that it is wrong and bigoted to take Herman Cain's route and support the banning of mosques and prohibiting Muslims from public service. I do find it disagreeable that we are allowing things like South Park being forbidden from depicting their prophet, though I think that had as much to do with radical political correctness as it had to do with Muslims. As Pete referenced several times, there are political and legal ways to handle the issue of Sharia law in the United States-- when it comes down to it, there are no more than three million Muslims in the U.S., and I'm confident a majority of them don't really want strict Sharia law enforced by the government, and if they did there are still many hundreds more million Americans who do not want it. I'll trust those odds before we go the Cain route and start infringing on civil liberties.

Recall what Washington's letter to the Hebrew congregation called for--more than toleration but the bonds of fellow citizenship based on a common embrace of natural rights. Is that what many Muslims want? Recall my example of the Muslim student who had no problem with killing converts from Islam. I hope the Muslims we get in this country disagree with that view, but that's just a hope on my part. In the meantime, let's not base what should be prudential policy on a categorical imperative concerning toleration. There are certain activities that are intolerable. Justice Frankfurter referred to the Communist Party has no seminar in political theory.

Anon a couple posts above has it right.

Does "free exercise" include meeting to pray for the eventual replacement of our Declaration and Constitution with another form of government but not acting to bring it about?

Shouldn't, then, we also be concerned about Christian Reconstructionists and Dominionists who openly express a preference for a theocracy?

John, good point.

Ken, Washington's letter sets the condition that they "should demean themselves as good citizens in giving it on all occasions their effectual support." This does not necessarily mean that they should embrace our common ideology (which in some measure is not embraced by many Christian or secular Americans to some extent or another.) In the context of our discussion your student would have the legal obligation to not act as an accessory to a crime whatever his religious beliefs might be. If he doesn't, he faces the full force of the law. But it gives no occasion for interfering with the peaceful worship of his coreligionists (to go back to the original point.)

For obvious reasons, there probably wasn't much occasion for Communists Party's members to engage in peaceful communal prayer, but to the extent they did they had that right.

There are about a billion muslims in this world and we have a rather haphazardly conceived immigration policy and an elite that has little respect for the common-and-garden working-class majority. Mr. Rushdoony's readers number how many?

As for Cathollics at the time of founding, consider the differences between GW's letter to the Hebrews and his letter of Catholics, which is much sterner, precisely because of the dual loyalty issue. America improved Catholics--see Tocqueville--such that that is no longer the question. Whether Muslims can possibly reform themselves is another issue. Again, we deceive ourselves into thinking that being Muslim is simply a matter of the heart--it is word and deed combined, as it is in a different way for Catholics. The toleration principle is universal, but (as with any political issue) prudential applied has different implications for each particular faith. In other words, a legalistic SCOTUS approach is not how you want to reason about it.

Pete,

Americans do not have a "common ideology." The Declaration of Independence is based on "self evident" truths, and the "laws of nature and of nature's God." On the other hand, the "theoretic politicians" which James Madison takes to task in the Tenth Federalist subscribe to an egalitarian ideology. George Washington in 1786 wrote of his concern that the failure of republican government might lead some to draw the conclusion that that form was "merely ideal," meaning not practical. The Progressives are idealists but the American founders and those who have followed their principles are not.

Ken, if protecting the right of law abiding citizens (including abiding by laws regarding incitement to violence etc.) to worship peacefully is "legalistic", then that is a legalism I can get behind, as should the federal judiciary and not just the federal judiciary. Disclaimer: This endorsement does not necessarily apply to other definitions of legalistic that might be contrived.

I read Washington's letter (if we are talking about the same one.) I don't get where he suggests that places of worship for law abiding Catholics might be shut down by the federal government based on the actions of some of their coreligionists.

I have never supported shutting down mosques. Washington does condition his greetings to Catholics on their loyalty. What I am insisting is that prudence and not a mechanical constitutional test be the guide on accepting Muslims into the U.S. You are posing a false dilemma. See Jaffa's essay on the first amendment association freedoms and Communists. He agrees they have no rights because they are Communists, who seek to destroy the country. But he disagrees about vigorous prosecution. A parallel might be made in many instances with first amendment religious liberty and Muslims.

Ken, that was a guide for the Herman Cain's of the world? I've also not commented on immigration policy. Are we talking past each other. I do not for a second thing that the associational rights of Muslims in general (especially peaceful worship) might be suspended based on the actions of some of their coreligionists. I can think of particular collections brought together for criminal purposes, but then the relevant criteria would be criminality.

You cannot assess this sort of thing intelligently without discussing immigration policy, and, more generically, what franchise localities should have in directing the evolution of their community.

We are talking, as AD notes, about what makes an American, not what we should put up with. Again, you want to use a legal test, I a prudential one. I'm saying it's a lot messier than you care to admit, and that trying to draw bright lines is imprudent. The model here is Justice Frankfurter's observation concerning Communism that it is not simply a theoretical enterprise. For many of its adherents, maybe even most, Islam is not just about "worship."

AD if it sounds like I'm saying that it is not constitutional to prevent law abiding citizens to peaceably assemble to worship (and subject to religion neutral land use regulations - and not under conditions of general insurrection) that is because that is exactly what I'm saying.

Ken, no doubt it is messy. If someone is practicing sedition, etc. interested parties should bring it to the attention of the authorities who can then work through the court process.

I realize that is what you are saying. As a matter of law, the salient points of contention have to be adjudicated in their favor.

That does not, however, give us much guidance about what is and is not advisable public policy going forward.

Lincoln: "Is there, in all republics, this inherent, and fatal weakness?’’ "Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?’’
You think the first, I the second, on this particular issue.

Ken, I happen to think (along with Lincoln on this one I would hope) that neither is true as a matter of necessity. To be context appropriate to Lincoln's Independence Day address to Congress that you cite, we would have to be talking about using force against armed insurrectionists rather than banning worship facilities for law abiding and peaceful worshippers. I am not aware of any of Lincoln's legion of sometimes deranged critics accusing him of having advocated that the federal government (the only one restricted by the Bill of Rights at the time) do or be empowered to do any such thing (you neither - but not Herman Cain unfortunately.)

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