Motley Moose – Archive

I humbly propose that the following invocation be given whenever a public meeting in the City of New York (and anywhere else that seeks to adopt it) is convened:

May Hashem’s wisdom guide us and may His laws guide us.  May we take on more mitzvot [commandments] and may we therefore merit the coming of Moshiach, bim’hera v’yameinu.  Amen.

After all, if this prayer:

Lord, God of all creation, we give you thanks and praise for your presence and action in the world. We look with anticipation to the celebration of Holy Week and Easter. It is in the solemn events of next week that we find the very heart and center of our Chris­ tian faith. We acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength, vitality, and confidence from his resurrection at Easter. . . . We pray for peace in the world, an end to terrorism, violence, conflict, and war. We pray for stability, de­ mocracy, and good government in those countries in which our armed forces are now serving, especially in Iraq and Afghanistan. . . . Praise and glory be yours, O Lord, now and forever more. Amen.

meets constitutional scrutiny for public governmental meetings, then the prayer I so humbly propose should meet that scrutiny as well.

Of course, I somehow doubt that the five justices that effectively declared today it was okay to effectively establish Christianity as the religion of state simply because the majority of Americans practice it would find a prayer so overtly Jewish acceptable.  Similarly, a prayer overtly Muslim or of any other religion would also not meet their scrutiny.  And those that scream loudest in favor of the prayer offered by clerics at the public meetings of the Town of Greece, New York, would scream for the separation of religion and state the moment a sectarian non-Christian prayer was offered.

Oh, and one more thing.  Justice Thomas reiterated his belief today that the Establishment Clause protects state establishments of religion and merely prohibits the federal government from establishing a national religion.  I would love to see a state establish a non-Christian religion as its state religion and then see if Justice Thomas possesses the courage of his convictions or if those beliefs only apply when a state adopts some form of Christianity as its state religion.

When I saw that Oregon became the latest state to call on Congress to pass a constitutional amendment to overturn Citizens United it caused me to begin thinking.  I know that in most civics classes we are taught how the Constitution is amended:  A proposed amendment must be passed by a two-thirds majority in each house and then ratified by three-quarters of state legislatures.  It seems straightforward and simple enough.  The truth, however, is that it is not.

There are two ways to amend the United States Constitution.  One is through the process mentioned above.  In fact, all 27 amendments to the Constitution have been proposed and ratified in this manor.  That said, there is another method, one which would allow proponents of a constitutional amendment to overturn Citizens United to bypass a congress highly unlikely to pass such an amendment.  Follow below the fold.

Let me start out with words advanced by both Justice Robert Jackson (chief American prosecutor at Nuremberg) and Justice Arthur Goldberg (U.N. Ambassador during the Johnson Administration after leaving the Court):  The Constitution is not a suicide pact.

The premise of that statement is quite simple.  Despite what we might like to think, there is no such thing as an absolute right.  Rights end when they bring harm upon, and conflict with the rights of, others.  For example, if your religion calls for you to go out and assault one person every day you will not be able to claim freedom of religion as a defense in the subsequent criminal trial.  Instead, you will be convicted and, depending upon the severity and frequency, be sentenced to a term of incarceration.

This same premise holds true when it comes to national security and the responsibility of our government to keep American citizens safe.  To start with, it must be asked what is the primary purpose behind the government action in question?  Is it a standard criminal investigation with the ultimate of bringing a prosecution?  Is it an attempt to collect intelligence to thwart a terrorist attack directed at United States citizens or at American soldiers?

The distinction between the two might not seem particularly important, but it actually is of the utmost importance.  The former instance is exactly what the Fourth Amendment was designed to for to limit government power.  Much of our Bill of Rights is inspired by (and lifted from) the English Bill of Rights, acceptance of which was a condition of William and Mary taking the throne.  Another was the old English maxim that demonstrated the power of government to squelch dissent:

The greater the truth, the greater the libel.

The latter, especially because it comes to matters of national security, affords the government some degree of greater deference, although not absolute deference.

Let us put aside for the moment that not only did most of you not have any qualms about such surveillance during the Bush Administration.  Let us also put aside that during those years you not only lacked any qualms, but also supported it and questioned anyone that disagreed with you over it.  Let us assume, for purposes of argument, that this is genuine concern rooted in privacy issues and not rooted in politics.

President Obama has made clear that members of Congress have been briefed on this issue.  Therefore, if you are truly concerned, and you truly believe that the public had a right to know what was happening, there is a simple solution that was available to you the moment you found out.  What is that solution?

Read everything you know about the surveillance programs into the Congressional Record.

This could be done through an actual speech on the floor of the House or the Senate.  This could be done through a speech in committee.  This could be done by moving to insert the full text of what you have into the Congressional Record.  There are all sorts of ways to do this and with its insertion it would enter the public domain.

Now you’re probably thinking that you could get in serious amounts of trouble, and go to prison for a long time, for what is effectively leaking highly classified information.  You couldn’t be more wrong.  See, that Constitution you claim to hold so dear, and you claim you know pretty much inside and out, protects you pretty much absolutely if you had chosen to go this route.  I direct your attention to Article I, Section 6, Clause 1:

Senators and Representatives…  for any speech or debate in either House, they shall not be questioned in any other place.

This is a grant of congressional immunity for your speeches in Congress and your insertions into the Congressional Record.  In fact, this is how Sen. Mike Gravel (D-Alaska) helped ensure that the Pentagon Papers would enter the public domain.  A subsequent case held that this protection also extends to congressional aides for conduct for which a representative or senator would be immune from prosecution.

So, there you have it Republicans.  If you were so concerned about this matter, and you truly believed that the public had the right to know, rather than just as part of an attempt to create a scandal, there was a way open for you to raise your concerns and inform the public.  This way was created in the Constitution and is now nearly 226 years old.  Furthermore, it has been used before.  With all the constitutional scholars you claim to have, I’m surprised you never thought of this before.

Do I believe that marijuana should be legalized?  Yes.  Would I vote for legalization if I were a member of Congress?  Yes.  Would I support bills that decriminalize marijuana at the state level?  Yes.  Would I have voted for either the Colorado or Washington initiatives that legalized, rather than merely decriminalized, marijuana in those states?  No.  Would I have signed the bill that Colorado governor John Hickenlooper did to establish a regulatory scheme for marijuana in his state?  No, I would have vetoed it.

At first glance it doesn’t sound logical that I favor legalization of marijuana and yet would oppose the various initiatives at the state level to do so.  How, exactly, are these seemingly conflicting viewpoints not contradictory?

The answer lies in the second question I ask.  The other four questions all deal with state-level issues.  That second question is one of federal power.  Individual policies are important, but there is something even more important than individual policies.  That is respect for the federal Constitution, which includes acting in accordance with its provisions.