Date: Sun Nov 16 11:59:09 1997
To: Frank Grose
From: Rob Weinberg
Subject: Re: Legal Opinions (part ii)
At 07:26 PM 11/15/97 0600, you wrote:
“Welcome to America.”
Hey, I love America. Wouldn't have served in combat if I didn't. I'm not crazy about some of the folks running it these days, but our form of Government is a good one. Regarding amending the Constitution. Could you draft an amendment that says what the First Amendment says (without all the liberal misinterpretations including by the Court) that is not subject to being twisted and convoluted by the Court? How much plainer does it have to be said?
I suspect you'd be happy if there simply was no establishment clause. Congress toys with amendments to the first amendment all the time. They're doing it now. Why aren't amendments being proposed? Because Congress knows, I'm speculating, that such an amendment that would overturn 30 years of precedent would likely never be ratified, at least not in the near future. So they keep offering *statutes* that they know the courts will overturn. Frankly, that's irresponsible. By sponsoring a statute, they think the public will be satisfied that they're doing their job, when in fact they're wasting time. If they were serious, someone would be trying to drive a proposed amendment through. But they're not. They're posturing, using your faith to get themselves re-elected. How can you deliver religion into the hands of men like that?
It reminds me of the country song that says, "What part of 'No' don't you understand?"
This is my argument exactly! The "right" keeps trying to push the envelope, and when they're told "no," they say it's anti-Christian hostility.
There's an incredible amount of stuff on the Separation of Church and State web page. Take some time off and read that stuff. Start with "A Note to Our Critics" or whatever it's called. Try and understand what they are trying to convey. It (or I) may very well be called anti-religion in government, but it is (and I am) not anti-Christian. But read the stuff on the page. Try and undertand why the courts decided the cases as they did, what their reasoning and analysis was, without the moral pejorative label that you ascribe to those who disagree with you on the result we should apply.
Perhaps it should have said, "Congress shall make no law, and the Courts shall make no ruling, respecting the establishment of religion or prohibiting the free exercise there of, any time, any place, or by any person, regardless of his position in or out of government."
I'm unsure what you mean by this. Are you proposing it as a limitation on the powers of the courts? Or are you saying that's what the courts have been saying? If the former, then your job is easy. Start a movement to abolish the establishment clause from the constitution outright. If the latter, then where your logic breaks down is the phrase "in or out of government." None of the cases on the issue affect what people do in their private lives, only what they do in their government roles. That's the big lie, that's why it's not an attack on your personal religious views or Christianity generally. That is a point I have been making repeatedly. The establishment clause is a limitation on government entanglement with religion (any denomination). You have never answered the question "what gives you the legal right to dip into my pocket to pay for you to teach my children your religion?" I'll teach my own children, thank you very much. The business of government is paving roads, enforcing criminal laws, defending us from foreign attacks, that sort of thing. By its very nature it's unqualified to be in the religion business. That is the point of the Murray/Schempp case.
That is what they meant, except the Courts were not allowed to get away with "making" law in those days. Were such anticipated, there'd been a specific prohibition against it. Perhaps that is an amendment that should be pushed today. No, impeachment provisions are already defined; they just need to be exercised.
Unquestionably during the Warren and Burger Courts years there was a lot of judicial activism. Without it, we'd still have Jim Crow laws and legal segregation and gerrymandering, we'd have criminal laws that authorized torture and interrogations, deprivation of the right to counsel, searches and seizures without probable cause. Questions from those days are being revisited today, including some of the underlying assumptions made about the "penumbra" of rights that "protect" the right to abortion. You'll find that many of the justices on the court are revisiting issues the results of which, for example, minority communities are calling hostile to blacks, hispanics, women, etc.
But misconstruing the law or getting it wrong is not grounds for impeachment of the judge. Federal judges have life tenure and their salaries cannot be lowered precisely to keep them above the political fray. If they're wrong and you don't like the results of their rulings, the answer isn't to make it personal and attack the judge, but to change or clarify the law. Any other approach is an invitation to lawlessness. “Not offended. Bear in mind that the memos were sent to give you a discourse on the state of the law at the time they were written. Some background on the legal arguments. Try not personalize my legal opinions if you can. It gets in the way of actually grappling with the legal hurdles that are in front of you on the issues. The best thing about the www.Christiananswers.net site you sent me is their "unconfirmed quotes" page, because it's honest and acknowledges that the rhetoric that's been thrown around about founding fathers' original intent is subject to academic challenge. Work on being more like that.” You mean look at what folks really said?!? Good idea! May I offer that same advice back to you? You may not even be aware of how you absolutely reject any arguments from the right, regardless of how true they are. You might try being a little more objective in your evaluation of them. For starters try what I gave you up front. From you comments on David Barton, it is easy to discern how you regard him, although you haven't given him an opportunity to speak to you. That is called prejudice by some. Open up a little. Don't be paranoid.
I don't really have an opinion on Barton. He's certainly entitled to his. I shy away from some of that stuff because it's too simplistic. I have to go read the cases he alludes to, and then I find myself in the position of having to confront the contextual inaccuracies and misquotes. And that gets old. Other web pages have done that better, and thoroughly, and the only site that shows some intellectual honesty is Wallbuilders.com. "Your side" needs more sites like that. I repeat, so far, Barton's stuff you quote is fine for what it says, as the "right's" theory of history. But there's more in depth stuff from a legal analysis in the pleadings and briefs filed on Roy Moore's behalf in the Alabama Supreme Court. So Barton isn't making any arguments I haven't grappled with myself already at a higher (or deeper) legal analytical level.
I have spent some time the last few days searching the web for official position papers from "the right" to see what they've actually said, as opposed to what's been reported they said from the "left." The Secular Web site has links to major religious right organizations that I've been visiting looking for links to add to the "other side" part of my web page. But there's nothing substantive that I've found, other than Wallbuilders and the American Center for Law and Justice. If you know of other sites that address the issues in a substantive way, let me know and I'll add them. I won't say that the legal hurdles are insurmountable, just that those who would seek to tear down the wall of separation just aren't up to the challenge yet, from what I've seen.
BTW, you said the Torah version of the Ten Commandments were different from those in my Bible. I have not heard that before. Please tell me what the difference is.
It's written in some of the briefs in the Moore case. Remind me Monday and I'll see if I can find them. One example is: thou shalt not kill versus thou shalt not murder. I'm told there are actually a couple of inconsistencies between versions of the decalogue within the Bible itself, regardless of whose version you're reading.
Seriously. Spend some time on the Separation of Church and State web page. All of the points that you've made and the concerns you have are addressed extensively there. There's simply too much finger pointing and demagoguery about what the real issues are in this debate.
So. How we doin? -Rob
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