Constitution Thursday

The SHOW NOTES

A couple of weeks ago, the administration issued its long-expected Executive Order which purports to "protect free speech” on social media.

Now, for many of us, the idea of forcing a private business to allow a takeover by political speech which it either does not support or doesn’t like, to be something of an anathema.

Oddly enough, buried deep in the EO is a citation to a Supreme Court case that Conservatives have long hated because it seems to eviscerate private property rights and allow the taking of private property as banned by the 5th Amendment.

So why is a President who Conservatives and say they like, pushing a ruling that they hate in order to get what he wants, which is to be allowed to Tweet without any limits or restraints on a platform owned by a private business?

A recent Supreme Court decision (Bostock) has many on the Political right proclaiming the death of the conservative movement. Their reasoning is rooted in a combination of dismay and what has to be some COVID inflicted loss of perspective, but in either case, there is a great deal of anger and gnashing of teeth at Justice Neil Gorsuch, who not that long ago was the darling of the Conservative Right.

This ruling by the Supreme Court has resulted in a number of Facebook posts, one of which caught my eye because it came from a friend who I regard as wise, educated, and having a good understanding of how things work. which brings me back to the same COVID inflicted loss of perspective, and reminded me that it might be time to talk about Article V and how Congress, at least used to, regularly "overrules” the Supreme Court.

One of the life lessons that pretty much everybody learns, sooner or later, is that there is a difference between what you can do and what you should do. In the words of the illustrious Dr. Malcolm, "You were so busy thinking about whether you could that you didn’t stop to think about whether or not you should.”

In the time of COVID, the Constitution has become a focal point for debates and argument which have now spilled over into other areas of civil action and protest. But the question remains about whether or not things that are permissible are in fact, beneficial?

The President, tweeting fiercely, announces that he wants something done. In this case, he is threatening to deploy the military to stop the riots.

Can he do that? Well… the answer is yes, he can.

Should he do that? That is an answer that is not quite as clear, is it?

Barely a week has passed since religious conservatives on the Atlantic Coast were celebrating their victory in the North Carolina District Court, overturning the Governors Executive Order’s ban on religious gatherings, calling it a violating of the free exercise clause of the 1st Amendment. Within hours of that ruling, the 9th Circuit Court met to decide whether a San Diego District Judges denial of an almost identical request for a TRO in California should be reconsidered.

By a two to one margin, the panel upheld the District Judges denial for a TRO and let stand Governor Newsome’s order that banned gatherings for religious services by large numbers that violate social distancing rules. The Church has appealed to the Supreme Court, which sets up an interesting set of potential circumstances.

To understand the potential arguments, we have to go back in time, first to 1949, when a Catholic Priest gave a speech to some eight hundred members of the Christians Veterans of America. Another sixteen-hundred people were also there, and they did not like what he was saying. This led to what many described as a riot, and led to a fierce discussion of what exactly is free speech and – more importantly – a full-on debate about the limits on the 1st Amendments protections.

Then we move to Hialeah, FL in 1993. There, the City Council heard testimony from various officials, including the Police Department Chaplain, calling a specific religious belief "offensive” and "un-American.” They then passed a city ordinance essentially banning the religious practice, which was subsequently upheld by the State Courts and the US District Courts. The Supreme Court, on the other hand, saw things differently.

And it was here that the 9th Circuit Panel looked when they considered whether or not to hear the appeal from Sough Bay United Pentecostal church vs Gavin Newsome. All of this leaves us with more questions than answers…

On May 21, 1702, Daniel Defoe, yes, *that* Daniel Dafoe, was arrested and imprisoned for his recently published pamphlet which, in keeping with Poe’s Law, failed to please the new Queen of England. This was not ancient history to the Framers of the Constitution, and they made sure that no one person could wield so much power that free expression of religion would become a punishable offense.

Over the years the idea of free expression was tested. Before incorporation, the Courts were content to allow laws that limited the idea. After incorporation, it became much more difficult for governments to limit the practice.

Now, in the time of the Constitution and the COVID, new stress is being placed on the 1st Amendments interpretation of free expression. Multiple States have found themselves embroiled in arguments over whether or not religious services can be held in person and in violation of Governor’s Executive Orders? Even here in the PACNORWEST, the Governor (and failed Presidential Candidate with 0% of the Polls) canceled a scheduled presser to announce some Phase II reopening plans because of recent Court cases over the issue of religious services.

We will focus on one in North Carolina, where a District Court Judge has given many people a rallying cry with his ruling in favor of a temporary restraining order on that Governor’s order about religious gatherings. And we ask the question: if incorporation came about because of the abuses of the States once before, will it happen again?

In the 17th Century, one man had to make a choice. Should he stick to his religious dogma and ignore his own observations and computation, or accept a new reality. As a scientist, he realized that he could not ignore reality. Because of his discoveries, because he was willing to accept that his precious dogma was incorrect, the world changed.

As we begin a new voyage into the universe of the US Constitution, we would be wise to keep in mind that much like Scripture, and two people can look at the identical words on a page and come to a polar opposite understanding. We must steel ourselves to study with a willingness to understand that a different point of view does not mean that another person is our enemy. it means that they have a different experience in life, a different culture or environment. It means that we have an opportunity to learn something new.

And, like Kepler, we must use that new data to see if our dogmas are in line with what we observe. If they are, we strengthen our understanding. if they are not, then we have the opportunity to make a change. One based not on passions or emotions, but on truths.

I have noticed two odd things about the whole COVID-19. Neither of them bode well for liberty in the future.   First, Republicans have become Keynesian economic believers. That's bad enough, but the other thing is even worse.  There are some Constitutional arguments against the response, but some of the states seem to have found the ironclad Constitutional authorization to impose a State of Emergency which comes with some rather remarkable powers and dangers.   

But there is a very big potential downside to the expansion of those powers...

Regardless of how you look at it, impeachment is a political act. The punishment for impeachment is not jail, or a fine or even having to wear an ankle monitor. It is simply the removal of a person from the position or office of trust which they held. They could be charged criminally for their acts after removal, but until 1987, no person who held office or trust under the United States who had been impeached was ever charged criminally let alone convicted of an actual criminal offense.  

The Constitution seems clear as to what justifies impeachment: “treason, bribery, or other high crimes and misdemeanors,” is the actual verbiage, although most Americans seem to only know about the last two. Frankly, that is the main reason that the language has shifted from “quid pro quo” to “bribery.” 

 At the end of the day, impeachment has always been about politics, because politics is power.

I know that most people find it odd, but I did spend a good portion of my life in the theological field. At the end of the day, what drove me out was the seminal change from people who sought knowledge and discussed things into people who depended upon inductive reasoning to determine their beliefs and refused to learn anything outside of what they had already decided was their “truth.” In the case of my own denomination of birth, we went from a doctrinal text that delved into the depths of theology to a comic book style “What We Believe.” The dumbing down of theology and teaching is what – in my opinion (and others) has led to the decline of faith in our country. It’s too easy to learn and so little effort is put into it. It was a major factor in my own path to Judaism.  

Socrates said that the beginning of wisdom is realizing what you don’t know. When I started on this voyage of Constitution Thursday, it was eye-opening how much I simply did not know. It’s surprising to me that even ten years later, I feel like I am still in Constitution 101.  

So when a “Professor of Government” at a large state-funded university in a “Conservative” State writes a major article claiming that the Constitution “is the problem,” I am left to wonder if it really is, or if this is just a continued dumb down of knowledge and dependence upon inductive reasoning?