It has been interesting to watch the news coverage of the latest SCOTUS fiasco. As usual, the elctronic media hypnotists do their dead-level best to misdirect you and point your focus somewhere other than where it should be. I have seen almost no television coverage of any substance regarding the horrific gutting of the 5th Amendment by our good friends in the 'conservative leaning' Supreme Court. That is massively more impactful to my day to day life and liberty than DOMA, which was a poorly thought out law to begin with. The media instead have tapped into the deeply emotional nature of the DOMA debacle, which to me was the least surprising thing the Supremes have done lately. But even while covering it, they have failed to look at it in any depth. The narrative is painted as a simple one reinforced with looped footage; happy homosexuals on one side of the argument, and foaming at the mouth religious people on the other. I'd like to think I don't fit into either group, in fact I can assure you that I don't qualify for the first group with my wife as the star witness. but I would like to weigh in with my own analysis of these events, and throw my 2 cents into the national debate.
DOMA was a bad idea, because there exists nowhere in the Constitution the authority for the federal government to regulate or define marriage. I'm not even entirely certain where we got this notion from. Legislation intended to shape or steer a society is often the most dangerous stuff you can dream up. Had I been a Congressman I would have voted against it. An individual has a right to conduct their own personal affairs and enter into any sort of relationship that they desire. I may not approve of it, I may even preach against it, but in the end, according to scripture they are sinning against their own body and is not something Congress needs to pay any attention too. I will go on further to say they have the right to call that relationship whatever they want, but as we say back home 'putting a cat in the oven don't make it a biscuit'. You don't have the right to redefine a word to suit your own agenda at anyone else's expense. At this point , the individuals involved have only harmed and involved themselves. DOMA gave Congress unconstitutional powers to regulate something that only affects the people involved.
So as an example, let's say I joined a 2 person club. Me and my fellow club-member agree that when one of us dies, the other one gets his stuff. We both agree to this, and even put it in writing. We decide to call our club "The Coolest Club in the Universe". Silly? Absolutely. You might even say that the club name is misleading ( really Mike? the whole universe?). You may not like it, you may not approve of it and even speak out against it but really, it's none of your business what we are doing, and what we call it. What you lack is the legitimate authority to outlaw it. Later on, we decide to expand the club parameters to allow a 3rd person to join. Does it suddenly become your business legislatively?
Here's where it gets hairy and here is exactly where I think , as bad an idea as DOMA is, the SCOTUS decision is just as bad. I now take my club and go to your restaurant and say 'you must offer my club the discounts and privileges you offer other clubs, or I will cry foul'. A rational response would be to assess what business impact this would have on your restaurant, along with your personal feelings about our club, and make your decision from there. You may decide to offer me what you have offered others, or you may decide to tell me to hit the bricks. Either way, I should have no authority to FORCE you to cater to our little group of weirdos because you are under no obligation to honor a agreement that you weren't part of. Our club has no 'rights' other than the right to associate with whom we please. We should not be able to force you to associate or acknowledge us. We certainly shouldn't have the right to legislatively force you to modify your business practices to accommodate us against your will.
The long term fallout of the SCOTUS decision will be in its application, and my prediction is that a new 'right' will spring out of whole cloth, and with it the justification for the state to force other people to acknowledge a union that they were never part of. I expect discrimination lawsuits and defamation campaigns to be generated against those that choose not to acknowledge the latest 'club'. Those that speak out against the club will be vilified even worse than they already are, and their speech curtailed under the jackboot of the police state. I expect the heavy hand of government will violate people's right to association and to their own property and business practices in order to force this new reality down every ones throats. The end result will be less freedom for everyone, the homosexuals included ,and more government interference in people's bedrooms.
Nobody wins.
Showing posts with label Supreme Court. Show all posts
Showing posts with label Supreme Court. Show all posts
Thursday, June 27, 2013
Wednesday, April 24, 2013
Question 22
It is one of my firm beliefs is that history is cyclical, and whatever insanity and oppression a state tries to foist upon its citizenry, one can usually find a historical precedent somewhere where a very similar thing was done to one degree or another.
In 1925 Douglas Macintosh, a Canadian theologian who had lived in the US since 1916, applied to be a naturalized citizen of the United States. The preliminary form for petition of naturalization at the time contained a series of questions, and based off of his answer to several of the questions, Mr. Macintosh was denied citizenship. The questions, his answers, and the eventual Supreme Court case that came out of it, are all very interesting to any serious student of liberty.
Question 20 on the form read . "Have you read the following oath of allegiance? (which is then quoted). Are you willing to take this oath in becoming a citizen?". Mr. Macintosh answered 'yes'. Question 22 on the form read "If necessary, are you willing to take up arms in defense of this country?". Mr Macintosh had served in the Canadian military as a chaplain during WWI, and was not a pacifist, but his answer to question 22 is so remarkable I feel it would be remiss not to quote it in its entirety:
"I am willing to do what I judge to be in the best interests of my country, but only in so far as I can believe that this is not going to be against the best interests of humanity in the long run. I do not undertake to support 'my country, right or wrong' in any dispute which may arise, and I am not willing to promise beforehand, and without knowing the cause for which my country may go to war, either that I will or that I will not 'take up arms in defense of this country,' however 'necessary' the war may seem to be to the Government of the day. 'It is only in a sense consistent with these statements that I am willing to promise to 'support and defend' the Government of the United States 'against all enemies, foreign and domestic.' But, just because I am not certain that the language of questions 20 and 22 will bear the construction I should have to put upon it in order to be able to answer them in the affirmative, I have to say that I do not know that I can say 'Yes' in answer to these two questions."
In a later hearing he sought to clarify his position. He said that he was not a pacifist; that, if allowed to interpret the oath for himself, he would interpret it as not inconsistent with his position and would take it. He then proceeded to say that he would answer question 22 in the affirmative only on the understanding that he would have to believe that the war was morally justified before he would take up arms in it or give it his moral support. He was ready to give to the United States all the allegiance he ever had given or ever could give to any country, but he could not put allegiance to the government of any country before allegiance to the will of God. He did not anticipate engaging in any propaganda against the prosecution of a war which the government had already declared and which it considered to be justified; but he preferred not to make any absolute promise at the time of the hearing, because of his ignorance of all the circumstances which might affect his judgment with reference to such a war. He did not question that the government under certain conditions could regulate and restrain the conduct of the individual citizen, even to the extent of imprisonment. He recognized the principle of the submission of the individual citizen to the opinion of the majority in a democratic country; but he did not believe in having his own moral problems solved for him by the majority. The position thus taken was the only one he could take consistently with his moral principles and with what he understood to be the moral principles of Christianity. He recognized, in short, the right of the government to restrain the freedom of the individual for the good of the social whole; but was convinced, on the other hand, that the individual citizen should have the right respectfully to withhold from the government military services (involving, as they probably would, the taking of human life), when his best moral judgment would compel him to do so. He was willing to support his country, even to the extent of bearing arms, if asked to do so by the government, in any war which he could regard as morally justified.
In 1931, his appeal was carried to the Supreme Court in United States vs Macintosh and his citizenship denied. The majority opinion delivered by Justice Sutherland is chilling in places (emphasis mine):
"Naturalization is a privilege, to be given, qualified, or withheld as Congress may determine, and which the alien may claim as of right only upon compliance with the terms which Congress imposes."
And several paragraphs later:
"Clearly, it would seem, in order that the court and the government, whose power and duty in that respect these provisions take for granted, may discover whether the applicant is fitted for citizenship-and to that end, by actual inquiry, ascertain, among other things, whether he has intelligence and good character; whether his oath to support and defend the Constitution and laws of the United States, and to bear true faith and allegiance to the same, will be taken without mental reservation or purpose inconsistent therewith; whether his views are compatible with the obligations and duties of American citizenship; whether he will upon his own part observe the laws of the land; whether he is willing to support the government in time of war, as well as in time of peace, and to assist in the defense of the country, not to the extent or in the manner that he may choose, but to such extent and in such manner as he lawfully may be required to do."
"That it is the duty of citizens by force of arms to defend our government against all enemies whenever necessity arises is a fundamental principle of the Constitution."
"Whatever tends to lessen the willingness of citizens to discharge their duty to bear arms in the country's defense detracts from the strength and safety of the government."
"Fro its very nature the war power, when necessity calls for its exercise, tolerates no qualifications or limitations, unless found in the Constitution or in applicable principles of international law. In the words of John Quincy Adams, 'This power is tremendous; it is strictly constitutional; but it breaks down every barrier so anxiously erected for the protection of liberty, property and of life."
... And yet he may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country, and risk the chance of being shot down in its defense.'
The applicant for naturalization here is unwilling to become a citizen with this understanding. He is unwilling to leave the question of his future military service to the wisdom of Congress, where it belongs, and where every native-born or admitted citizen is obliged to leave it.
The Supreme Court took the position way back in 1931 that your conscience must be suborned to the health of the state, and to find a war unjustified or running counter to your morality is in itself, an act of disloyalty to the state. They also took the position that it is your duty as a citizen not to protect yourself or your neighbors, but the government even as it acknowledged that the number one enemy of liberty is sustained warfare.
Justice Hughes offered his dissenting view that, while hardly a libertarian manifesto, has some bright spots in it:
"When we consider the history of the struggle for religious liberty, the large number of citizens of our country from the very beginning who have been unwilling to sacrifice their religious convictions, and, in particular, those who have been conscientiously opposed to war and who would not yield what they sincerely believed to be their allegiance to the will of God, I find it impossible to conclude that such persons are to be deemed disqualified for public office in this country because of the requirement of the oath which must be taken before they enter upon their duties. "
" When one's belief collides with the power of the state, the latter is supreme within its sphere and submission or punishment follows. But, in the forum of conscience, duty to a moral power higher than the state has always been maintained. "
"There is abundant room for enforcing the requisite authority of law as it is enacted and requires obedience, and for maintaining the conception of the supremacy of law as essential to orderly government, without demanding that either citizens or applicants for citizenship shall assume by oath an obligation to regard allegiance to God as subordinate to allegiance to civil power. The attempt to exact such a promise, and thus to bind one's conscience by the taking of oaths or the submission to tests, has been the cause of many deplorable conflicts. "
Despite such pleas of dissent, the Supreme Court ruled against Macintosh in a 5-4 decision. Not only did the supposed 'guardians of the Constitution' take a position that flies in the face of all that it means to be free, later they changed their minds, overturning the decision in 1983. Conservatives are often blinded by a nostalgia for a past that never was and will refer back to some mythical past in which the government obeyed the restrictions of the Constitution as a matter of practice. This rose-colored view of history is dangerous and those who hold that the Supreme Court will thwart evil or destructive legislation need to to take close look at this case, and cases like it to see that the Supremes record is spotty at best, and nightmarish at times. The true guardian of your liberty, and of your conscience, is you, and it has always been that way, even back in the 'good old days'.
In 1925 Douglas Macintosh, a Canadian theologian who had lived in the US since 1916, applied to be a naturalized citizen of the United States. The preliminary form for petition of naturalization at the time contained a series of questions, and based off of his answer to several of the questions, Mr. Macintosh was denied citizenship. The questions, his answers, and the eventual Supreme Court case that came out of it, are all very interesting to any serious student of liberty.
Question 20 on the form read . "Have you read the following oath of allegiance? (which is then quoted). Are you willing to take this oath in becoming a citizen?". Mr. Macintosh answered 'yes'. Question 22 on the form read "If necessary, are you willing to take up arms in defense of this country?". Mr Macintosh had served in the Canadian military as a chaplain during WWI, and was not a pacifist, but his answer to question 22 is so remarkable I feel it would be remiss not to quote it in its entirety:
"I am willing to do what I judge to be in the best interests of my country, but only in so far as I can believe that this is not going to be against the best interests of humanity in the long run. I do not undertake to support 'my country, right or wrong' in any dispute which may arise, and I am not willing to promise beforehand, and without knowing the cause for which my country may go to war, either that I will or that I will not 'take up arms in defense of this country,' however 'necessary' the war may seem to be to the Government of the day. 'It is only in a sense consistent with these statements that I am willing to promise to 'support and defend' the Government of the United States 'against all enemies, foreign and domestic.' But, just because I am not certain that the language of questions 20 and 22 will bear the construction I should have to put upon it in order to be able to answer them in the affirmative, I have to say that I do not know that I can say 'Yes' in answer to these two questions."
In a later hearing he sought to clarify his position. He said that he was not a pacifist; that, if allowed to interpret the oath for himself, he would interpret it as not inconsistent with his position and would take it. He then proceeded to say that he would answer question 22 in the affirmative only on the understanding that he would have to believe that the war was morally justified before he would take up arms in it or give it his moral support. He was ready to give to the United States all the allegiance he ever had given or ever could give to any country, but he could not put allegiance to the government of any country before allegiance to the will of God. He did not anticipate engaging in any propaganda against the prosecution of a war which the government had already declared and which it considered to be justified; but he preferred not to make any absolute promise at the time of the hearing, because of his ignorance of all the circumstances which might affect his judgment with reference to such a war. He did not question that the government under certain conditions could regulate and restrain the conduct of the individual citizen, even to the extent of imprisonment. He recognized the principle of the submission of the individual citizen to the opinion of the majority in a democratic country; but he did not believe in having his own moral problems solved for him by the majority. The position thus taken was the only one he could take consistently with his moral principles and with what he understood to be the moral principles of Christianity. He recognized, in short, the right of the government to restrain the freedom of the individual for the good of the social whole; but was convinced, on the other hand, that the individual citizen should have the right respectfully to withhold from the government military services (involving, as they probably would, the taking of human life), when his best moral judgment would compel him to do so. He was willing to support his country, even to the extent of bearing arms, if asked to do so by the government, in any war which he could regard as morally justified.
In 1931, his appeal was carried to the Supreme Court in United States vs Macintosh and his citizenship denied. The majority opinion delivered by Justice Sutherland is chilling in places (emphasis mine):
"Naturalization is a privilege, to be given, qualified, or withheld as Congress may determine, and which the alien may claim as of right only upon compliance with the terms which Congress imposes."
And several paragraphs later:
"Clearly, it would seem, in order that the court and the government, whose power and duty in that respect these provisions take for granted, may discover whether the applicant is fitted for citizenship-and to that end, by actual inquiry, ascertain, among other things, whether he has intelligence and good character; whether his oath to support and defend the Constitution and laws of the United States, and to bear true faith and allegiance to the same, will be taken without mental reservation or purpose inconsistent therewith; whether his views are compatible with the obligations and duties of American citizenship; whether he will upon his own part observe the laws of the land; whether he is willing to support the government in time of war, as well as in time of peace, and to assist in the defense of the country, not to the extent or in the manner that he may choose, but to such extent and in such manner as he lawfully may be required to do."
"That it is the duty of citizens by force of arms to defend our government against all enemies whenever necessity arises is a fundamental principle of the Constitution."
"Whatever tends to lessen the willingness of citizens to discharge their duty to bear arms in the country's defense detracts from the strength and safety of the government."
"Fro its very nature the war power, when necessity calls for its exercise, tolerates no qualifications or limitations, unless found in the Constitution or in applicable principles of international law. In the words of John Quincy Adams, 'This power is tremendous; it is strictly constitutional; but it breaks down every barrier so anxiously erected for the protection of liberty, property and of life."
... And yet he may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country, and risk the chance of being shot down in its defense.'
The applicant for naturalization here is unwilling to become a citizen with this understanding. He is unwilling to leave the question of his future military service to the wisdom of Congress, where it belongs, and where every native-born or admitted citizen is obliged to leave it.
The Supreme Court took the position way back in 1931 that your conscience must be suborned to the health of the state, and to find a war unjustified or running counter to your morality is in itself, an act of disloyalty to the state. They also took the position that it is your duty as a citizen not to protect yourself or your neighbors, but the government even as it acknowledged that the number one enemy of liberty is sustained warfare.
Justice Hughes offered his dissenting view that, while hardly a libertarian manifesto, has some bright spots in it:
"When we consider the history of the struggle for religious liberty, the large number of citizens of our country from the very beginning who have been unwilling to sacrifice their religious convictions, and, in particular, those who have been conscientiously opposed to war and who would not yield what they sincerely believed to be their allegiance to the will of God, I find it impossible to conclude that such persons are to be deemed disqualified for public office in this country because of the requirement of the oath which must be taken before they enter upon their duties. "
" When one's belief collides with the power of the state, the latter is supreme within its sphere and submission or punishment follows. But, in the forum of conscience, duty to a moral power higher than the state has always been maintained. "
"There is abundant room for enforcing the requisite authority of law as it is enacted and requires obedience, and for maintaining the conception of the supremacy of law as essential to orderly government, without demanding that either citizens or applicants for citizenship shall assume by oath an obligation to regard allegiance to God as subordinate to allegiance to civil power. The attempt to exact such a promise, and thus to bind one's conscience by the taking of oaths or the submission to tests, has been the cause of many deplorable conflicts. "
Despite such pleas of dissent, the Supreme Court ruled against Macintosh in a 5-4 decision. Not only did the supposed 'guardians of the Constitution' take a position that flies in the face of all that it means to be free, later they changed their minds, overturning the decision in 1983. Conservatives are often blinded by a nostalgia for a past that never was and will refer back to some mythical past in which the government obeyed the restrictions of the Constitution as a matter of practice. This rose-colored view of history is dangerous and those who hold that the Supreme Court will thwart evil or destructive legislation need to to take close look at this case, and cases like it to see that the Supremes record is spotty at best, and nightmarish at times. The true guardian of your liberty, and of your conscience, is you, and it has always been that way, even back in the 'good old days'.
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