Lessons for Israel in American Constitutional Law Freedom of Expression: Part I February 28, 2009
Posted by Daniel Downs in Constitution, family, Freedom of Speech, marriage, pornography, Supreme Court.1 comment so far
If there is one thing that characterizes America apart from pop and pizza, it’s pornography. Pornography in the United States is a multi-billion dollar business. It’s an engine that corrupts youth.
Pornography graphically reduces the human to the subhuman. It transforms love into lust. It undermines marriage and the family. It lowers not only the moral but also the intellectual level of a society. Pornography therefore undermines a nation’s security. A ruling of former Supreme Court president Aharon Barak indicates he does not know this.
But then he does not know that phonograph fosters self-indulgence, hence undermines public spiritedness or dedication to the common good and therefore erodes Israel’s ability to withstand her enemies Similarly, pornography corrodes the sense of shame, hence of honor. A nation without honor cannot long endure.
The flood of pornography or “porn” in the United States began in the late 1950s as a direct consequence of its Supreme Court’s libertarian interpretation of the First Amendment of the Constitution, which states, in part, “Congress shall make no law … abridging the freedom of speech, or of the press.” (Unfortunately, Israel’s Supreme Court has adopted American jurisprudence on this issue, and with the same predictable consequences: pornography is thriving in the Holy Land. Let’s pause and open our eyes.
The First Amendment prohibits only the Congress, not the States, from abridging freedom of speech and press. In fact, the first eight amendments of the Constitution, which comprise the Bill of Rights, were meant to limit the powers of the national government, not those of the state governments.
This was the ruling of Chief Justice Marshall in the case of Barron v. Baltimore, decided in 1833. The ruling was affirmed even after the ratification of the Fourteenth Amendment in 1868. Thus, in Hurtado v. California decided in 1884, the Supreme Court rejected the contention that the due process clause of the Fourteenth Amendment applied to the States the restrictions the first eight amendments applied to the national government.
This ruling was reaffirmed as late as Twining v. New Jersey in 1908. Not until Gitlow v. New York in 1925 did the Court hold that, “For present purposes we may and do assume that freedom of speech and of the press … are among the fundamental personal rights and ‘liberties’ protected by he due process clause of the Fourteenth Amendment from impairment by the States.”
The original Constitution must be understood before the amendments to the Constitution can be properly interpreted. Thus, the constitutional principle of federalism, affirmed by the first ten amendments, stands on the distinction that the Constitution imposes different restrictions on the powers of the national and state governments. For example, whereas only the States are constitutionally prohibited from impairing the obligation of contracts, only Congress is constitutionally prohibited from abridging freedom of speech and press (leaving open the possibility of such action, under emergency conditions, by the Executive).
Besides, the First Amendment ought not be interpreted in abstraction from the Constitution as a whole. An amendment may alter, but it does not nullify, the Constitution. Accordingly, the words “Congress shall make no law … abridging the freedom of speech, or of the press” may not be construed in such a way as to nullify Congress’s authority “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers [enumerated in Article I, Section 8].” Virtually any one of these powers may necessitate certain limitations on freedom of speech and press.
Consider, for example, the power of Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Or consider the power of Congress to “provide for the common Defense.” Contrary to prevailing opinion, there can never be a simple opposition between the common defense and freedom of expression. For to defend the nation is to preserve its way of life, a most important aspect of which is freedom of expression.
Conversely, if certain kinds of expression endanger national defense, then they also endanger freedom of expression. Thus, by virtue of its power “To provide for … disciplining the Militia,” Congress may establish a code of military law making punishable any speech or publication causing insubordination in the armed services (and in peacetime no less than in times of national emergency).
This illustrates the organic principle of political life, one formulation of which may be stated as follows: Absolutizing the value of any part of a whole is destructive of the whole, hence of the part as well. If, therefore, the First Amendment is to function as a part of an organic whole whose parts reinforce and not obstruct each other, the injunction “Congress shall make no law … abridging the freedom of speech, or of the press” must be construed in such a way as to protect this freedom without undermining other constitutional values on which that freedom ultimately depends.
Two general alternatives are possible. Either certain kinds of expression must not be included under the category of freedom of speech and press, or, certain kinds of restraints on freedom of speech and press must not be included under the category of an abridgment thereof. I shall discuss these two alternatives in the next article.
(to be continued)
By Prof. Paul Eidelberg, President of The Foundation for Constitutional Democracy
Senators’ Seeking Ratification of UN Treaty Governing Rights of Children Violates Individual Rights of Parents February 20, 2009
Posted by Daniel Downs in children, Congress, Constitution, family, law, marriage, parental rights, politics, power.1 comment so far
In paragraph 3 of the previous post “America Standing Alone,” the author states that ratification of the United Nations Convention on the Rights of the Child will become Constitutional law.
‘If the United States Senate were to ratify the UNCRC, then under Article VI of our Constitution, that treaty would become ‘the supreme law of the land,’ essentially self-executing. In a nation of laws such as ours, we would be obligated to implement every part of it in very short order….”
U.N. conventions are synonymous with international treaties. Treaties are legally binding on all parties. To ratify a U.N. convention, a super-majority of the Senate has to agree. If two-thirds do, it become part of the Supreme Law of Land as stated above.
Because the UNCRC over-rides all state law concerning parental authority concerning their children, this law will further undermine state sovereignty as well as individual rights of parents.
The Ninth and Tenth Amendments to the U.S. Constitution make it clear that the federal government is strictly limited only to those powers specified in the Constitution. Matters concerning the marriage, family, children, and parenting are beyond the scope of federal law. Capitol Hill politicians, like Senator Boxer and Hillary Clinton, who seek to make UNCRC American law are clearly in violation of their oath of office. Changing the powers of federal government requires amending the Constitution.
The obvious problem is that politicians seem to believe that anything the Constitution does not prohibit gives them a right to do whatever they think is good for any or all. However, American legal history shows that the purpose of our written Constitution is to limit the federal or state governments to only those powers agreed to by a majority of voters.
That is why the state sovereignty resolution movement is necessary. It is necessary that a majority of states reassert their rights by passing resolutions demanding that the federal government stop their abuse of power. The current Congressional leaders are leaders of such abuse.
America Standing Alone? February 19, 2009
Posted by Daniel Downs in children, Constitution, family, freedom, parental rights, politics.add a comment
It’s an old and tired refrain: “Do as I say, and not as I do.” Only the ones saying it are not just ex-hippie parents, overweight athletic coaches, or Sunday School teachers with anger issues.
Now the refrain is being sung by the nations of the world to the United States of America. Sort of the “United Nations Concert Choir” in full symphony. They all want us to sign on to the UN Convention on the Rights of the Child, and they want to embarrass us with references to Somalia if we don’t. But are they willing to do the very things they most desire of us?
If the United States Senate were to ratify the UNCRC, then under Article VI of our Constitution, that treaty would become “the supreme law of the land,” essentially self-executing. In a nation of laws such as ours, we would be obligated to implement every part of it in very short order. But the world doesn’t understand why we would “stand with Somalia” in refusing to pass all those restrictive laws in one broad stroke.
Standing with Somalia, incidentally, is not at all what we are doing. Somalia has no formal government, else they would probably have ratified the treaty themselves before now. Somalia is not taking any stand, and they are not with us. As has happened so often in history, and usually to our credit rather than shame, the United States is standing alone.
But are the 192 nations of the “choir” doing what they would ask us to commit ourselves to? Certainly not. In every case, they have chosen to exempt themselves from some aspect or other of this exhaustive “agreement.” Ironically, it seems to be an agreement to which no one can quite agree.
Pakistan, for instance, was embarrassed last week when representatives from various non-government organizations (NGO’s) met to criticize the nation’s report to the UN Committee on the Rights of the Child. According to an article at The News (Pakistan), critics of the government’s report complained that it contained likely falsehoods, including over-reporting the number of teachers who had been trained in accordance with U.N. guidelines. They also noted that, although the nation ratified the treaty in November of 1990, the government has yet to fully incorporate its mandates into law. Parts of the agreement, including the mandate to provide U.N.-approved education, have been legislated, but never enforced. In addition, several provinces of Pakistan have passed no laws at all protecting children, and have no government agencies to aid children in need. Furthermore, though the government cites cooperation with NGO’s as a plus in its attempts to improve standards for children, critics say there is no way the few organizations can meet the needs of such a populous country. And the critics should know, since they represent those very NGO’s.[1]
China, meanwhile, has recently taken fire in a different venue, as fellow member states of the United Nations have called for a multitude of changes in China’s laws and policies on everything from children to prisoners to freedom of the press. Among the issues, according to an article at China Digital Times, is a recommendation from Finland that China “remove its reservation to the [sic] Article 6 of the Convention on the Rights of the Child.”[2] What is Article 6? That’s the fine little detail about guaranteeing children a right to live. China said “No, thank you,” to Finland’s suggestion, continuing to grant itself a “pass” on that particular part of the UNCRC. But China would urge us to sign on 100%. They can’t be bothered to ensure each child a right to live, but we have to sign away our national sovereignty on every issue remotely related to children.
The United Nations Committee on the Rights of the Child meets three times a year to review reports from a handful of countries on their compliance with the treaty. Most recently, they reviewed six national reports in January. Yet not one of these reports, ever, has been completely satisfactory. Not once has the committee responded to a nation state, “Congratulations, you are fulfilling your obligations under the UNCRC.” What does that mean? It means there isn’t a nation in the world that has fully adopted the CRC without reservations or omission. Not China, with its reservation against Article 6, or Pakistan, even fudging their numbers. Not a single country. Not one.
So maybe the United States isn’t really so “alone” after all. Maybe we’re just the only ones standing.
by Parental Rights.org
NOTES:
[1] http://www.thenews.com.pk/daily_detail.asp?id=162207
[2] http://chinadigitaltimes.net/2009/02/united-nations-china-says-no-to-democracy-and-human-rights/
SCHIP : A Springboard to Fixing Our Political Economy January 14, 2009
Posted by Daniel Downs in children’s health care, Congress, Democrats, family, free market, justice, monetary policy, moral virtue, news, political economy, politics, Republicans, SCHIP, taxes, welfare, work.add a comment
In a press release issued today, Republican Whip Eric Cantor offered to work with Congressional Democrats and President-elect Obama to revamp the State Children’s Health Insurance Program. He called on Dems to help the nation’s families provide quality health care for their children.
Seems like a reasonable goal that all people of all party affiliations could support, right? The problem is Democrats and their leaders promised to improve the middle class welfare prospects. That is what the conflict between the two parties has been about. Republicans like Cantor want to restore SCHIP to its original purpose: help low-income families who can’t provide health care for their kids–not adults, not middle class workers, nor anyone who already has insurance.
Now would be a good time for Dems to stop trying to make all Americans dependent on the federal government. They could do us all much good by actually fixing the political economy rather than stimulate to death.
The economy is already a rule based human activity of we humans. The first rule of Constitutional governance is less government is more liberty for everyone. This translated into terms relevant to a political economy means less bailout and more free market behavior. As financial advisors like Bill Bonner of Agora Financial, keeps saying, you can’t correct a credit/debt crisis by adding trillions more of the same. Can you help an obese man by giving him another helping of dessert, or cure an alcoholic by offering him free drinks? Of course not. The same applies to overspending, too much debt and bad credit.
In one sense, the underlying problem of the current economic depression is a moral one. More economic liberty without moral virtue regulating it produces much irresponsibility and corruption, which increases the dividends of injustice. Secularist may have great difficulty with a political economy that is strongly regulated by moral principles. Nevertheless, a morally self-regulated people would more likely regulate their own tendencies toward excesses, sexual and economic. They would be more apt to be less greedy and more just toward the less prosperous. They would be less likely to accept outrageous income at the expense of millions of fellow citizens. Persons not credit worthy wouldn’t get high interest loans. They would get a substantive economic plan to help them become credit worthy. Loan sharks couldn’t exist because greedy lawmakers and their corporate associates wouldn’t exist either. An unproductive vice like gambling wouldn’t have government backing because it would be much more difficult for corrupt politicians to openly justify preying on people with compulsive behaviors as a means to raise tax dollars. A moral economy would still reward entrepreneurs while assisting the less fortunate to work their way up to reasonable measure of economic independence. At least from the perspective of 18th century America, this would be expected because the primary source of morality is religion.
Helping poor families provide health care for their children should at best be a temporary aspect of an economy in which the principles of Jubilee are normative. This biblical law that makes helping fellow citizens through economic crisis to economic independence a legal obligation, should be the norm.
Punishing the poor with taxes, low wages, and high interest rates on loans they can’t afford is plain unjust.
Maybe God’s judgment is built into nature after all. The founders may have been right that it’s part of God’s natural law. It is apparent politicians can’t beat the system.
Gays Unable to Accept Pope’s Defense of Environment and Nature’s ‘Law,’ Says Top Theologian December 26, 2008
Posted by Daniel Downs in Catholic Church, family, God, homosexuality, marriage, natural law, nature, news.add a comment
Pope Benedict XVI’s remarks this week about defending the environment and understanding the “ecology of man” sparked sharp criticism from homosexual activists.
While the pope never mentioned “homosexuality,” it was his explanation of the nature of man and the order of the natural world that caused gays to react so harshly, Fr. George William Rutler, a leading Catholic theologian, told CNSNews.com.
In his Dec. 22 speech at the Vatican, Pope Benedict talked about World Youth Day, the environment and Jesus Christ. On the environment, the pope said: The earth is “the gift of our Creator, with certain intrinsic rules that offer us an orientation we must respect as administrators of creation. … [The church] must defend not only the earth, water and air as gifts of creation that belong to all. It must also defend the human person against its own destruction. What’s needed is something like a ‘human ecology,’ understood in the right sense. It’s not simply an outdated metaphysics if the church speaks of the nature of the human person as man and woman, and asks that this order of creation be respected.”
The pope went on to say that if people disregard this “order of creation,” it is self-destructive. “That which is often expressed and understood by the term ‘gender’ in the end amounts to the self-emancipation of the human person from creation and from the Creator,” and as a result “the human person lives against the truth, against the Creator Spirit,” said the pope.
The pope was saying that man is made in the image of God and is therefore “unique” among all species and has authority over nature, Fr. Rutler told CNSNews.com, adding that realities such as gender – man and woman – are not arbitrary developments in biology, or accidents, but are clearly defined in the natural world for a reason.
If a person rejects nature’s assigning of gender, or tries to change it, then that is disruptive to nature and destructive, said Rutler. The natural environment must be responsibly protected, as the pope mentioned in reference to rain forests, but so must the natural order in men and women, said Rutler.
Homosexuals, in their behavior, “are denying the truth of nature and denying the natural law,” he said.
In reaction to the pope’s speech, Rev. Sharon Ferguson, director of the Lesbian and Gay Christian Movement, as reported in The Scotsman said: “It is more the case that we need to be saved from his comments. It is comments like this that justify homophobic bullying that goes on in schools and that justify gay bashing.”
Rev. Giles Fraser, president of the pro-homosexual movement Inclusive Church, told Agence France-Presse: “The pope is spreading fear that gay people somehow threaten the planet, and that’s just absurd.”
“As always, this sort of religious homophobia will be an alibi for all those who would do gay people harm. Can’t he think of something better to say at Christmas?” said Fraser.
Franco Grillini, with the Italian group Gaynet, told The Guardian, “What keeps the pope awake at night is the idea that human beings might be able to seek out their own sexual identity to have a happy life.”
Also reported in The Guardian, Arcigay’s Aurelio Mancuso said, “The speech has no scientific basis. A divine programme for men and women is out of line with nature, where the roles are not so clear.”
Fr. Rutler, who holds a pontifical doctorate in sacred theology, and a master of studies from Oxford University, said that homosexual activists and secular liberals do not understand the relationship between the human race and nature because they are essentially Gnostics, they see the natural world – the material world – as contrary to anything divine and “the result of energies other than God.”
To say that “the Word was made flesh,” as in the New Testament, is “a total contradiction” to the Gnostic, said Rutler, because the Gnostic thinks “the divine can have nothing to do with the flesh.”
As a consequence, for example, homosexuals “do not see marriage as an essentially divine institution – they see it as a legal construction that can be changed at will,” said Rutler. “They see a Supreme Court changing the law on marriage and say it is valid. But from the point of natural law, it would be like saying the Supreme Court could repeal the law of gravity.”
This is why homosexuals see the pope’s remarks as threatening, said Rutler. “The homosexual is a classic Gnostic,” he said, “because the homosexual does not understand how gender is intrinsic to God’s will for the human race. Male-ness and female-ness are not arbitrary categories.”
In 2004, Pope Benedict (then Cardinal Ratzinger) wrote that “the obscuring of the difference or duality of the sexes has enormous consequences on a variety of levels,” which include calling “into question the family, in its natural two-parent structure of mother and father, and make homosexuality and heterosexuality virtually equivalent, in a new model of polymorphous sexuality.”
In 1992, then-Pope John Paul II described homosexual marriage as “perhaps part of a new ideology of evil, perhaps more insidious and hidden, which attempts to pit human rights against the family and against man.”
Matt Barber, an attorney and board member of PFOX, Parents and Friends of Ex-Gays and Gays, told CNSNews.com that “if we are going to focus so much attention on preserving our environment and ecology, then what is the most precious aspect of our environment? From a Christian perspective, it is man, who was created in God’s image.”
“When man is in a destructive mode, as the pope suggested, then it is incumbent upon those who care about mankind – their fellowman – to encourage those engaging in a destructive lifestyle to leave it,” said Barber.
Source: Catholic News Service, December 24, 2008.
Catholic Vote on Marriage and Family November 5, 2008
Posted by Daniel Downs in Chrisitanity, family, gay politics, marriage, news, politics.add a comment
Catholic League president Bill Donohue commented today on the role Catholics played in securing marriage and family rights in the election:
“Were it not for Catholics, the institutions of marriage and the family would have taken a hit in places like Arizona, Florida and California. Indeed, in Florida and California, their vote proved to be decisive.
“Arizonians rejected gay marriage by a vote of 56% to 49%, though the margin among Catholics was less—51% to 49%. In Florida, the Catholic vote proved to be controlling: overall, the ban on gay marriage won by 62% to 38%, but among Catholics it was 66% to 34%. Californians narrowly defeated gay marriage by a margin of 52% to 48%, but Catholics rejected it by an impressive 60% to 40% differential. A vote in California to support parental notification lost by 52% to 48%, but it won among Catholics by a hefty 58% to 42%.
“On both issues, Catholics and Protestants who are regular church-goers clearly supported a ban on homosexual marriage and affirmed their support for parental consent. Unmarrieds and those who don’t go to church overwhelmingly voted for the right of two men to marry; they also voted to deny mothers and fathers of their right to be notified in advance if their child is considering an abortion.
“Those who support traditional values, then, tend to be religious and married while those who sport a preference for moral relativism tend to be secular and single. The implications are clear: tax laws, and other public policy initiatives, which are both family-friendly and church-friendly, are critically important.
“Because those who reject traditional values and religion voted heavily for Barack Obama, it’s a sure bet the culture war will only get hotter. We expect to be quite busy.”
Keep Jerusalem United
The State of America 