FauxPolitik

Wednesday, August 27, 2003

I can't stop myself: Okay, more on Moore. But this time, I'm letting Alan Keyes do the talking. Keyes takes the minority position (no surprise here) that the First Amendment does not forbid government from legislating on religion. Instead he says that the Constitution forbids the federal government from making any laws with respect to religion. By extension, he then argues, this task is left exclusively to the states, who can make any law they want re: religion. He argues around the 14th Amendment like this:
"We have already seen that the actual language of the Constitution does not forbid an establishment of religion. Rather, it forbids Congress to legislate on the subject at all, reserving it entirely to the states. No language in the 14th Amendment deals with this power of government.

Portions of that amendment do indeed restrict the legislative powers of the states, but they refer only to actions that affect the privileges, immunities, legal rights and equal legal status of individual citizens and persons. The first clause of the First Amendment in no way deals with persons, however, but rather – in concert with the 10th Amendment – secures the right of the states and the people to be free from the dictates of federal law respecting an establishment of religion."
This tenuous argument is supported with examples like this:
"The government's power to arm soldiers for the community's defense does not inherently contravene the individual's right to arm himself against personal attack. The government's power to establish institutions of higher learning does not inherently contradict the individual's right to educate his young or join with others to start a school. The government's power to engage in economic enterprises (such as the postal service or electric power generation) does not inherently contradict the individual's right to private enterprise. It is possible for government coercively to inhibit or repress any of these individual activities, but it is obvious that government action does not in and of itself constitute such coercion."
Finally, he argues that Judge Moore, in refusing to comply with the Federal order is standing for liberty. More specifically, Judge Thompson's order
"represents a destructive violation of the right of the people of Alabama to decide how their government will or will not express their religious beliefs. This right of the people is the first one secured in the U.S. Constitution's Bill of Rights, and it cannot be compromised without surrendering the moral foundations of republican liberty. Judge Thompson's assault upon this right, and that of the entire federal judiciary for the last several decades, is not, therefore, a trivial threat to the liberty of the people. Judge Moore cannot obey the court's order without surrendering that liberty.
I'll stop now for comment.



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