September 1st-5th marks the 337th anniversary of a remarkable trial in England involving the great William Penn—founder of Pennsylvania and tireless defender of the liberty of conscience.  The year was 1670: Charles II ruled England and had enacted a series of laws known as the Claredon Code which were intended to ensure the supremacy of the Anglican Church in England after the interlude of Oliver Cromwell’s Commonwealth.  Included in the Claredon Code was the Coventicle Act of 1664 which forbade coventicles (meetings for unauthorized worship) of more than 5 people who were not members of the same household.  Its purpose was to outlaw the meeting of dissenting religious groups. 

The Quakers were one such dissenting group, and perhaps the most outspoken among them was Penn.  Penn decided to challenge the Coventicle Act by holding an assembly of Quakers outside Grace Street Church in London.  As soon as he began to preach to the assembly, Penn was arrested and charged with disturbing the peace by fomenting an unlawful and tumultuous assembly.  He was brought to trial on September 1st along with a fellow Quaker who attended the assembly, William Mead. 

At the outset of the trial, when asked whether he was guilty or not guilty of the charge, Penn proclaimed:

We confess ourselves to be so far from recanting, or declining to vindicate the assembling of ourselves, to preach, pray, or worship the eternal, holy, just God, that we declare to all the world that we do believe it to be our indispensable duty to meet incessantly upon so good an account; nor shall all the powers on earth be able to divert us from reverencing and adoring our God, who made us. 

Penn then demanded that the court cite the law upon which the indictment was based and which he was alleged to have violated.  The prosecution declined to do so because it feared that the Coventicle Act might be overturned.  Instead, it blandly replied that the indictment was based “upon the Common-Law,” to which Penn responded, “It is too general and imperfect an answer to say it is the Common-Law, unless we knew both where and what it is; for where there is no law, there is no transgression; and the law which is not in being, is so far from being Common, that it is not law at all.”  This response so infuriated the court that the judges ordered Penn removed from the courtroom while testimony was heard against him.  Before being removed, Penn observed:

Is this justice, or true judgment?  Must I therefore be taken away because I plead for the Fundamental Laws of England?  However, this I leave upon your consciences, who are the jury, (and my sole judges) that if these ancient Fundamental Laws, which relate to Liberty and Property, (and are not limited to particular perswasions [sic] in matters of religion) must not be indispensably maintained and observed, who can say he that right to the coat upon his back?  Certainly our liberties are openly invaded . . . . 

Penn and Mead were removed from the courtroom and the jury was charged with coming to a verdict.  Upon returning to the courtroom and being asked for the verdict, the jury foreman informed the court that they found Penn guilty of speaking at the assembly, but they refused to say it was an unlawful assembly.  This result, to say the least, displeased the court, which told the jury that “you shall not be dismist [sic] till we have a verdict that the Court will accept; and you shall be lock’d up, without meat, drink, fire, and tobacco; You shall not think thus to abuse the Court; we will have a verdict by the help of God, or you shall starve for it.”  Despite the court’s threat, the jury held firm to its verdict. 

True to its word, the court kept the jury overnight without food, water, or even access to a bathroom.  The next morning, the court again asked for the jury’s verdict, and again the jury refused to find Penn guilty of inciting an unlawful assembly.  When asked to give an account of his verdict, juror Edward Bushell replied, “I have done according to my conscience.”  Penn asked the court to record the verdict, but the court stated that it was not a proper verdict, to which Penn acerbically replied, “If ‘not guilty’ be not a verdict, then you make of the jury and Magna Charta but a meer nose of wax.”  The court ignored Penn and asked the jury again for its verdict and received the same reply it had previously given. 

When the court declined the verdict again and threatened to hold the jury for another night, Penn asked: “What hope is there of ever having justice done, when juries are threatened, and their verdicts rejected?”  His pointed question fell upon deaf ears.  The court held the jury for another night without food, water, or ordinary accommodations in hopes of persuading them to change their minds, but to no avail.  The next morning the jury rendered a verdict of “not guilty” as to both Penn and Mead.

Realizing that sending the jury back for more deliberations would be a waste of time, the court stated: “Gentlemen, you have followed your own judgments and opinions, rather than the good and wholsome advice which was given you; God keep my Life out of your Hands; but . . . this Court fines you forty Mark a man; and imprisonment till paid.”  After fining the jury, the court also fined Penn for “contempt of court” and ordered Penn and Mead be sent to prison—for wearing hats in the courtroom.  (Penn and Mead had taken off their hats when they first entered the courtroom, but they had been ordered to put them back on by the judge). 

The jurors were sent to Newgate prison where they endured deplorable conditions.  Juror Edward Bushell filed for a writ of Habeas Corpus contending that he had been wrongfully imprisoned.  The Court of Common Pleas agreed and issued the writ, stating that the trial court had been wrong to coerce the jury. 

Penn’s trial constituted the first publicized case of jury nullification: when the jury renders a verdict in spite of the law in order to send a message.  In this case, the jury disapproved of the Coventicle Act and of the court’s treatment of Mead and Penn.  Together, Penn’s trial and the Bushell case established the principle of jury independence as well as the understanding that juries are competent to decide both the facts and the law of the case.  The occasion for these legal landmarks never would have occurred but for William Penn’s stubborn willingness to stand up for his rights—especially the right of religious freedom. 

Two liberal law professors attack Justice Thomas for being “unprincipled” in his application of “original interpretation” jurisprudence in to two cases decided at the end of the term.  Their criticism is so elementary (and wrong) that I doubt they truly understand what originalism is—even if one of them teaches at the University of Virginia law school.  I don’t have the time or desire to refute them, but I will make two observations. 

First, I am grateful that Justice Thomas has a jurisprudential standard to which he is held.  On a purely philsophical level, it is not possible to assail any of the liberal justices on the Supreme Court based on a jurisprudential standard they purport to uphold because they do not have a standard other than their own preferences.  Think about it: Do you hear any discussion of a liberal theory of jurisprudence (other than Justice Breyer’s absurd “exercise of legal judgment” which is, again, just whatever the judge thinks)?  You don’t because they have none; they are intellectually bankrupt.  Even if a liberal law professor wanted to critique the reasoning of, say, a Justice Ginsburg opinion, there would be no intellectual way for him or her to do so because she has no baseline to which you can compare her reasoning.  It’s anything goes, hence the liberality in their results.

This point leads to my second one, which is that there is a growing sentiment among liberals that they should try to co-opt originalism from conservatives—claiming that the Founders actually thought the way liberals do.  I find this amusing because (a) liberals have been attacking the supposed silliness of originalism for 20 years and (b) the very idea of originalism undermines liberal thinking.  On point (a), it is ironic, to say the least, that originalism all the sudden becomes legitimate when liberals decide they want to try and use it.  The only reason they want to do this is because they believe that the rhetoric of originalism has become a powerful political tool.  If there is a standard for liberals it is that: political utility.  They think Scalia, Thomas, the Federalist Society, etc. have made political inroads because originalism sounds scholarly.  Because it has worked to a degree on the political level, liberals want to do what Bill Clinton was the master of doing: steal a good idea by using your opponent’s terminology to arrive at your own conclusions. 

The fact that they are only doing this for political gain and not some actual reverence for the Founders goes to point (b): liberalism is not compatible with originalism.  This is an inescapable fact: by definition liberals believe in progressive thinking, the idea that each generation is smarter than the previous one and improves society by departing from old social mores.  Originalism holds that the proper meaning of the Constitution is that which it meant when it was adopted by the people in 1789.  In a very real sense, it is a static concept that does not make room for the “evolving standards” by which liberals justify their thinking and behavior.  There is no reason to care about the founding generation’s view of the Constitution if we know better than they do how life should be lived and government should operate, which is precisely what liberals believe.  So their adoption of originalism is a facade made for Machiavelian purposes.  Even so, I am reminded of the famous line: imitation is the sincerest form of flattery.

It has been a long time since I have written in this space, and the reasons for that vary, but I am going to return on occasion now because there are reflections that need to be made and this is the only good place for me to make them.   The one important change that must be noted before all else is that I am now married.  I note it because that development colors everything from now on . . . and I could not be more happy about it.  Now, on to the legal reflection.

Tony Mauro, a correspondent for Legal Times, highlights a criminal case from this term at the U.S. Supreme Court as a way to show the conservative-liberal divide on the Court.  I point it out to demonstrate the bias of its presentation.  If you took everything Mauro says at face value, you would think that the world is ending because the mean conservatives on the Court are changing the rules in order to stick it to criminals, the discriminated, the downtrodden and the rest.  But think about the case: A criminal defendant files a habeas corpus petition three days late according to the deadline provided in the published federal rules of criminal procedure.  He filed late because the trial judge gave him an incorrect deadline which the attorney did not bother to double-check.  So, the mean conservatives on the court rejected his habeas petition because such deadlines are jurisdictional and a judge has no power to alter the jurisdiction of the court. 

This is the correct outcome under both the jurisprudence of the Court and the rules, but that does not stop Justice Souter from whining about the fact that the Court does not cut this criminal a break and make an exception.  Yet, especially in the criminal setting, one exception will be exploited by thousands, and before long it is not an exception at all but its own rule.  The rules exist to be followed, whether you miss a deadline by one day or a thousand.  That isn’t mean: it is called the law.

It has been said that evolutionists would rather play God than believe in Him. The axiom has a poster boy in Harvard biologist Marc D. Hauser. Hauser is the author of a new book, Moral Minds, which is the subject of a recent piece in the New York Times. In the book, Hauser posits that people are born with a moral grammar wired into their neural circuits by evolution. He proposes this theory in contrast to those who say that the ultimate source of morality is religion and that people learn moral behavior from their elders. It is, in essence, a gambit by Hauser to have science conquer what heretofore has been the territory of philosophers and theologians.Hauser’s “proof” that morality is wired into the brain as what he calls “moral grammar” consists of two observations. First, he notes that some advanced animals seem to have a rudimentary form of the sense of right and wrong. In humans, Hauser says that this sense is more developed because we possess the ability to remember bad behavior, quantify its costs, recall prior interactions with one another, and punish wrongdoers. Hauser neglects the question of why humans possess all of these other abilities that animals do not which seem to be key to making consistent moral decisions, but presumably he would say that these other characteristics happened to evolve along with the moral grammar.

Hauser’s second piece of evidence for the existence of moral grammar is the fact that believers in God and non-believers alike make the same moral judgments in many situations. Houser says this is because “the system that unconsciously generates moral judgments is immune to religious doctrine.” Decisions are made based upon moral grammar programmed into the brain and are rationalized by people after the fact using religious language.

Hauser should be commended for coming up with a creative way for evolutionists to explain moral behavior, but the very fact that he has bothered to do so raises a key question about his work. Why would an evolutionist be concerned about the source of morality at all? After all, if life is a purposeless accident that evolved from one-celled organisms into human form, then morality should not even exist. Put another way, for an evolutionist there is no such thing as “right” or “wrong” behavior; there is only behavior and consequences. Some behavior may lead to survival and the perpetuation of life while different behavior may lead to extinction, but for the evolutionist there is no telling which behavior might be which until extinction actually occurs. Evolution states that the fittest survive, but this does not mean that for the evolutionist survival is “right” and extinction is “wrong.” The goal of the theory of evolution is supposed to be simply to explain how life came to be in its present form without the aid of any supernatural force. It is not supposed to make judgments about whether the existence of life is a good thing, nor could it make such judgments because, by definition, evolution is a purposeless process. To borrow Hauser’s terminology, evolution lacks a moral grammar because it claims to be a science, which seeks to explain natural phenomena through observation and testing. Evolution, as a science, supposedly simply describes, it does not judge.

Morality throws a kink into the theory of evolution because it posits that there are reasons other than seemingly scientific ones that people act as they do. In other words, morality says that someone may perform a good deed simply because it is the right thing to do, not because it makes him or society more fit to survive. It would be easy for evolutionists to ignore morality if it only reared its head occasionally (mutation) or in only certain quarters (culture), but the fact is that it has popped up consistently across generations and cultures. People are always asking whether behavior is right or wrong. Because morality exists, evolutionary theory must account for its presence, but so far it has proven wholly inadequate to the task.

Hauser is attempting to rectify this deficiency, but he runs into a couple of scientific stumbling blocks in doing so. First, his proofs are conjectural in nature rather than empirical. Unless Hauser locates some kind of “moral gene” or synapse within the human body or brain, he cannot grab hold of this “moral grammar” of which he speaks. Instead, all he can do is posit its existence based on observing behavior. This leaves his theory open to accusations of being an after-the-fact rationalization of the existence of morality—the very charge he levels against religion.

However, lack of empirical proof has never deterred evolutionists, so they can forgive Hauser for this flaw. More problematic to other evolutionists is the fact that, in his quest to explain the existence of morality, Hauser relies upon a theory of behavior that runs counter to ordinary natural selection. Hauser says that moral grammar evolved because restraints on behavior are required for social living, and thus moral behavior is favored by natural selection because it helps the group survive.

The problem with this theory is that natural selection is typically considered to favor individuals, not groups. If a person acts in the best interest of a group rather than himself his actions do not necessarily perpetuate his own survival. But in order for the supposed gene that causes a person to act altruistically toward the group to be passed down, the individual who acts that way must survive and have offspring who carry the same gene. If natural selection favors those who are selfish, there is no evolutionary reason why altruistic behavior should still exist. For example: suppose a group of soldiers is on a battlefield and a live grenade rolls into their vicinity. If one of the soldiers jumps on the grenade in an altruistic effort to save his comrades, the rest of the soldiers may survive, but the one that demonstrated moral behavior dies. How is Hauser’s “moral grammar” passed on if those who possess it because weaker or die off due to their altruism? His only answer is that people act on behalf of the group rather than individualistically, but he has no real explanation as to why this is so.

The holes in Hauser’s theory illustrate what happens when evolutionists play God. The Times story notes that “Matters of right and wrong have long been the province of moral philosophers and ethicists. Dr. Hauser’s proposal is an attempt to claim the subject for science, in particular evolutionary biology.” I find this quite hypocritical considering that evolutionists consistently chide believers in God for supposedly overstepping their boundaries and “mixing science and religion,” particularly in matters concerning the origins of life. Apparently this is not a two-way street and evolutionists are allowed to try and explain anything and everything.

Yet morality implicates aspects of life beyond the physical. The right and wrong of a matter are much more complex than the matter itself. This is why science cannot answer all of the important questions of life. The Enlightenment period is generally considered to be a time of great advancement in science given that the contributions of Sir Isaac Newton, Francis Bacon, Benjamin Franklin, and others revolutionized human understanding of the material world. However, in hindsight history has judged the Enlightenment to have made the mistake of assuming that all of life could be quantified by observation, experience, and reason. Enlightenment thinking was a seminal reason for the emergence of what historians call the “Romantic Age,” which emphasized abstraction, emotion, and passion. Enlightenment thinkers committed the sin of all human philosophies throughout history: assuming it was the “theory of everything,” capable of divining answers to all human inquiries.

Evolutionists, including Dr. Hauser, are committing the same fallacy. Not content with attempting to answer questions about the origins and existence of life (which give them enough trouble), evolutionists like Dr. Hauser are trying to extend evolution’s sphere of influence into areas which it cannot make any legitimate claim of expertise whatsoever. The fact is that life it too complicated for one theory or method of investigation to answer all questions. More important than whether a theory or system answers all questions is whether it answers the right questions. Because science is devoted to the study of the material world, I would argue that it cannot answer the most vital questions of life, which include why we exist, what makes us yearn for something beyond the material world, what happens to us after death, and, yes, why a core part of our make-up seems obsessed with the rightness or wrongness of our actions.

Though the Harvard biologist undoubtedly thinks he is clever in his attempt to have evolution answer a vital life-question, all Dr. Hauser has, in fact, done is repackage an age-old philosophical/theological theory in evolutionary wrapping paper. As far back as the Greeks with Aristotle as well as the Stoics, people have posited the idea that there is a universal good embedded in nature. Saint Augustine infused a religious aspect into the idea, and St. Thomas Aquinas provided a full-fledged theory of what is known today as natural law.

In its simplest form, natural law theory holds that God embedded core principles of right and wrong into the very fabric of nature and the human heart. This natural law commonly manifests itself through what we call the conscience. Romans 2:14-15 says that “by the nature of things the requirements of the law are written on [men’s] hearts” and that “their consciences bear witness” to the law. The natural law provides general guidance about the basics of right and wrong, but it requires reinforcement through teaching and explication based on deep thinking. Even with these, it does not provide a complete picture for moral living, which is why God gave us his special revelation, the Bible.

The key difference between natural law theory and Hauser’s theory is absolutes. Because natural law holds that general standards of right and wrong are woven into the fabric of nature and the human heart, those standards do not change over time. In contrast, Hauser’s theory says that “[t]he universal grammar is a system of rules for generating syntax and vocabulary, but it does not specify any particular language. This is supplied by the culture in which a child grows up.” Thus, morality for Hauser and other evolutionists is culturally dependent; culture evolves and changes over time, which means that morality changes as well. Despite positing that there is a “universal sense of right and wrong” which is “hardwired” into the human brain, Hauser ensures that there is fluidity to the moral standards in his theory.

This flexibility in standards is ultimately why Hauser is concerned with the existence of morality. He and other evolutionists desire to take the moral high ground from believers in God because then people can mold morality according to their own preferences. But a personal standard that shifts with culture, time, and events is no standard at all. A true standard of right and wrong requires an impartial anchor, one Whom “does not change like shifting shadows” (James 1:17) and is “the same yesterday, today, and forever.” (Hebrews 13:8).

For morality to exist, it must contain absolutes. The existence of morality tells us that our actions carry consequences beyond our personal material survival. We possess an internal compass divining right from wrong because we were created by an eternal God who is the foundation upon which those absolutes rest. A person can talk about “right and wrong” and dress up a theory of morality using fancy scientific language, but unless the theory starts with the One who spoke us into existence, its moral language will always be slurred.

Not long ago 4th Circuit Court of Appeals Judge J. Harvie Wilkinson III was rumored to be on President Bush’s short list of nominees to the United States Supreme Court. We have since learned that the President was aiming for judges younger than Wilkinson, but no conservative uttered a harsh word about him when his name was bandied about for a seat on the high court. That may now change with his editorial published this week in the Washington Post concerning the controversy over same-sex “marriage.”

Wilkinson starts the piece with a bang, claiming that “[t]he chief casualty in the struggle over same-sex marriage has been the American constitutional tradition.” Judge Wilkinson notes that 20 states have passed state constitutional amendments banning same-sex “marriage,” with more on the way, and while their passage is “all but foreordained, . . . the first principles of American law will be further endangered.” Judge Wilkinson employs this dire language because, in his view, “[t]he Framers of our Constitution . . . did not envision our Constitution as a place to restrict rights or enact public policies, as the Federal Marriage Amendment does.” Such actions are the business of “ordinary legislation,” according to Judge Wilkinson, and he implies that conservatives are being hypocrites by supporting the Federal Marriage Amendment when they have opposed federalizing issues such as abortion and equal pay for women in the workplace. He brushes off the threat of activist judges, instead intoning that using the Constitution “for prescriptions of policy . . . shackle[s] future generations . . . . [and] strikes a blow of uncommon harshness upon disfavored groups, in this case gay citizens who would never see this country’s founding charter as their own.”

For a man who has been a federal appellate court judge for 20 years and is recognized as one of the finest legal minds on the bench, Judge Wilkinson’s arguments are astonishingly poor. He talks about constitutions in a solemn tone and then fails to make even the most elementary distinction between federal and state constitutionalism. The Founders discussed time and again the fact that the federal constitution was different than state constitutions because of the federal government’s extraordinarily limited powers (which I know sounds funny given the size of today’s federal government, but in its original form it was quite small). The result was a very short federal constitution while state constitutions were decidedly larger because of the much broader spectrum of issues covered by state powers. This has remained the case even to this day, with our federal constitution still being among the shortest in the world, while many state constitutions run on at length covering all sorts of seemingly mundane issues. The most extreme example of this is the Alabama Constitution, which presently contains 773 amendments, taking up a healthy amount of shelf space and covering everything from a “game and fish fund” to termination of alimony upon remarriage.

Judge Wilkinson proclaims that the Founders were advocates of “limited constitutionalism,” but he sloppily applies broad generalizations to a specific issue. There are general differences between matters typically addressed in constitutions as opposed to those addressed through legislation. Traditionally, constitutions are about the form of government, i.e., how it is organized, while legislation is about the substance of government, i.e., what the government does within the general form spelled out in the constitution. However, this does not mean that substance is never to be dealt with in a constitution.

In contrast to the main body of the U.S. Constitution, the amendments to it often concern substantive issues. When the People have desired to set a national policy on an issue they deemed fundamental to the fabric of the nation, they have done so through amendments. Just to cite two obvious examples, the 13th Amendment’s abolition of slavery and the 19th Amendment’s granting women the right to vote are both substantive provisions. Under Judge Wilkinson’s rubric of constitutionalism, those issues should not have been dealt with through the amendment process because future generations cannot now debate those issues. Yet obviously that is silly because the People of the United States decided that slavery and voting were such fundamental issues that they should be placed beyond the ordinary legislative process.

Nothing about the nature of our Constitution prevents the People from doing the same concerning marriage. The very fact that the amendment process is provided for in the Constitution refutes Judge Wilkinson’s claim that the marriage issue is somehow not a suitable subject for the Constitution: the Founders placed no restrictions at all on what subjects could be addressed through the amendment process.

Undeterred, Judge Wilkinson claims that traditionally constitutions have not been used to codify public policies and then asks, “Where is the threat that justifies so radical a break with our constitutional heritage?” I would answer by asking Judge Wilkinson where he has been for the last three years since the Massachusetts Supreme Court invented a right to same-sex “marriage” in the infamous Goodridge case?

The “threat” is an activist judiciary at both the federal and state levels filled with judges who believe it is their responsibility to make policy for their respective states and the nation at large because they supposedly know better than the People what is good for them. We have been edging closer and closer in this country over the last 30 years to a de facto oligarchy in which our “philosopher-kings” called judges decide all important questions for us. When judges decided to inform us that something as fundamental as marriage must be redefined to include unions of the same sex, the people of this country finally decided they had had enough.

Judge Wilkinson throws up road blocks that he knows (or should know) beg the question when he claims that the Defense of Marriage Act (DOMA) provides sufficient protection against activist judges. It is far from settled whether DOMA will hold up in court. Judges very well could say that DOMA violates “full faith and credit” in the Constitution and then the People are back where they started: with judges forcing an unwanted social policy down their throats.

He waxes on about first principles, but ignores them to make his supposedly intellectual point about the real purpose of constitutions. What is more fundamental than letting the People decide what their government will endorse on the most basic issues? Despite Judge Wilkinson’s protests to the contrary, the state constitutional amendments defining marriage have been shining examples of the democratic process in action because in most states the people have voted directly on this basic issue rather than through their representatives in the state legislatures. It is the democratic process writ large and these democratic votes are what Judge Wilkinson describes as blows of “uncommon harshness upon disfavored groups.” Somehow it is now harsh to tell people the government will not sanction something that they have not been allowed to do for the last two thousand years.

The fundamental legal principle Judge Wilkinson ought to be focusing on is the abuse of power by judges, not some fuzzy idea of what constitutions are designed for versus what they are not. He is hiding behind the veneer of “limited constitutionalism” while avoiding the very reason marriage has become a constitutional issue. The people have no recourse other than amendments if judges are going to constitutionalize the marriage issue by inventing a right to same-sex “marriage.” Judges stepping outside their constitutional role and making law endangers our system of limited constitutional government, not amendments declaring the heretofore obvious fact that marriage must be between a man and a woman.

The stability of our constitutional republic depends upon the strength of the moral fabric of our society. If a constitutional amendment can help hold that moral fabric together, and if the People are in favor of such an amendment, then it should be enacted. Rome did not collapse because of amendments to the law; it fell because the empire’s internal moral decay left it vulnerable to external physical invasion by the barbarians. The same is true in America, which is why we must stand up for the sanctity of marriage—the foundation of family—and turn a deaf ear to wayward judges like J. Harvie Wilkinson III.

Tensions are high in Michigan over a federal case that will determine whether an anti-affirmative action measure known as the Michigan Civil Rights Initiative will remain on that state’s November ballot. The MCRI would prohibit the use of race and gender preferences in university admissions and public hiring and contracting. A group opposing the measure, which calls itself By Any Means Necessary, claims that the MCRI’s proponents fraudulently obtained petition signatures by telling African-Americans and others that it would protect affirmative action. Proponents deny the allegation and say that it would demean democracy to remove the issue from the ballot. The judge says he will make a decision in short order to allow for the correct printing of election ballots.

This might be a new low for affirmative action supporters. In an attempt to deny the people of Michigan the chance to decide for themselves whether affirmative action should be used by the government in such things as hiring and contracting, opponents are accusing the other side of lying and in the process they wind up insulting African-Americans. The allegation that blacks only signed the petition because they were told it would help affirmative action implies: (a) the only way blacks would sign a petition on affirmative action is if it was in support of its use, and (b) blacks simply signed it rather than bothering to read what they were signing. These liberals cannot fathom that there may be African-Americans who do not want the “help” that preferences provide in the workplace and in school. They do not understand the concept of a person wanting to achieve something on his or her own without any kind of government help. So they assume that blacks must have been lied to and bought the lie. It is a pathetic argument, but then, what would you expect from a group that calls itself By Any Means Necessary? It is a wonder that anyone even believes their allegation with a name like that.

The latest battle in the eminent domain war involves an intersection between church and state. Officials in Brighton, New York want to expand a park in the city and they are willing to take, through eminent domain, nearly 70 acres of undeveloped land owned by Faith Temple Church to do it. Faith Temple is suing the city to try and keep its land because it has major development plans of its own for the land that include building a new worship center and a school. Legal experts from across the nation are watching the case to see whether the church’s land will receive extra protection or a Brighton triumph will open the floodgates to more takings of land owned by religious institutions.

The case itself is interesting, pitting as it does the government’s power of eminent domain against a church’s right to exercise its religion through expanding its facilities. Feelings want to say that the church’s right should control because it is their land and this involves religious freedom. However, this is close to a traditional eminent domain taking since a park benefits everyone in the city, so this is not a Kelo-style economic benefits taking . . . at least on its face. It may be that the city is planning to turn the park into a money-maker of some sort, but, unlike the church, Brighton officials are being tight-lipped about the details of their development plans.

From a constitutional perspective, if the taking was for a road or a military base this would be a simpler decision, but because a park is for recreation rather than a community necessity, it seems to me that the power of eminent domain does not automatically trump private property ownership here. However, the church’s involvement means that the Religious Land Use and Institutionalized Persons Act (RLUIPA) will play the most significant role in the outcome of the case and it is quite likely that the RLUIPA affords the church the extra protection it is seeking. The U.S. Justice Department, which filed an amicus brief on behalf of the Faith Temple, certainly seems to think that the RLUIPA dictates that Brighton should not be allowed to take the church’s land.

The relevant portion of the RLUIPA states: “No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution – (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.”

In non-legal language what that means is that if the power of eminent domain is considered a “land use regulation” under the RLUIPA, then the city of Brighton will lose the case because it will be basically impossible for the city to demonstrate that it is taking the land in furtherance of a “compelling governmental interest.” The RLUIPA defines a “land use regulation” as a “zoning or landmarking law, or the application of such a law, that limits or restricts a claimant’s use or development of land (including a structure affixed to land), if the claimant has an ownership [of such land].” Any government entity, including the city of Brighton, is empowered to use eminent domain by a statute granting it that power. The power of eminent domain clearly “limits or restricts” the owner’s use of the land. Thus, it would seem obvious that eminent domain does constitute a “land use regulation,” but with the way the federal courts interpret law today, any prediction on the outcome of the case is pure guesswork.

One other bit worth noting from this story is the statement of Rabbi Shaya Killimnick on this issue: “In reality, nobody really owns land. The government owns land. What we have is a license from the government to own the land.” Apparently Rabbi Killimnick believes he is living in Cuba, China, North Korea, or some other communist nation rather than the United States of America. No one owns land except the government? Does he even understand the concept of private property? The Founders would tremble in their graves if it came to be understood that they fought for the right to have the government own land. The founding generation considered private property to be one of the three most precious rights given by God to man, rivaled in importance only by life and liberty. Private ownership of property is the bedrock of our economic system and the telltale sign of physical and financial independence. As James Madison put it.

“Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions. . . . Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.”

The view that the government actually owns the property and simply licenses it to individuals is the very reason for the abuse of the power of eminent domain and is a formula for tyranny. For that fact alone perhaps it is best that the city of Brighton lose this case: apparently more people need to learn that the government does not own us or our land; we own the government.

This month a federal district court dismissed the lawsuit of a high school Christian band that sued an Ohio school district for prohibiting the band from playing during an anti-drug assembly at the district’s high school, Rossford High. The judge concluded that there was a “realistic danger” that the school district could be perceived as endorsing a particular religion if it allowed the band to perform at the assembly. The members of the band Pawn say they will appeal the ruling because being banned from the assembly represents religious discrimination.

The school made a poor decision in withdrawing its invitation to the band because, the judge’s ruling notwithstanding, there is nothing unconstitutional about allowing a Christian band to perform at an anti-drug assembly. Suppose someone was invited to the assembly to perform John Lennon’s “Imagine,” a song which disclaims the usefulness of any religion. Would that performance violate the First Amendment because of the “realistic danger” that the school district could be perceived as endorsing humanism? I doubt the judge would so hold, but he would have to in order to be consistent. Giving a Christian message in school does not establish Christianity as the school district’s religion.

However, the band members’ rights have not been violated. The school is entitled to decide who will perform at the assembly and who will not and it does not violate the band members’ “free exercise” of religion not to play at the assembly. Playing in the band may be one avenue in which the members express their religion, but playing at school is not quintessential to their “free exercise” of religion. Though the Rutherford Institute may claim so, there is no free speech violation either because free speech does not grant the band an automatic place in the assembly; if it did, then any and every band would have the right to perform at the assembly should it choose to do so. This is simply a case of a school district misunderstanding the law, but that misunderstanding has not resulted in a violation of constitutional rights. So, while the judge’s reasoning for the dismissal of the suit is wrong, the result is correct.

Luigi Cascioli, the man who sued an Italian Catholic priest charging that the priest had violated Italy’s laws against deceit and impersonation by perpetuating “the myth” of the existence of Jesus Christ, is reporting on his website that the European Court of Human Rights has accepted his appeal of the case. In February, an Italian judge dismissed the complaint of the man who refers to himself as “the most courageous atheist of all times [sic],” and suggested that Cascioli be investigated by prosecutors for possibly slandering the priest.

I will be the first to admit that putting this case—or any case for that matter—before the European Court of Human Rights is asking for trouble because one never knows what they are going to do. It is, after all, possible that the judges on that court could see fit to buy into Cascioli’s ranting and self-promotion simply because the judges on that court seem to believe they have jurisdiction over just about anything. However, anyone, even someone so badly wrong as Luigi Cascioli, is entitled to an appeal, and it is quite likely that the suit will go the way of the dodo sometime in the not-so-distant future.

The rarely heard from organization American Atheists has called upon the National Guard to issue an apology for supposedly insensitive remarks uttered by Chief of the National Guard Bureau Army Lt. General H. Steven Blum at the NAACP’s annual Armed Services and Veterans Affairs Awards. In the course of giving a speech that heavily emphasized the importance of racial and gender diversity in the Armed Services, General Blum stated that the battlefield might be the greatest promoter of diversity because “[a]gnostics, atheists and bigots suddenly lose all that when their life is on the line.” He continued, “Something that they lived their whole life believing gets thrown out the door, and they grasp the comrade next to them, and they don’t care what color their skin is, and they don’t care where they pray. They just care, ‘Can you save them? Can I trust you? Are you going to cover my back? Are you going to get me out of this?’” Demonstrating a penchant for overstatement, the president of American Atheists complained that General Blum’s diversity remarks were “stained by an animus directed at Agnostics and Atheists,” and the communications director for the organization said that the remarks show that the military still has a problem when it comes to religious belief.

American Atheists is obviously a fringe organization with nothing better to do than to pull out one or two lines from a very long speech and become offended by those lines. There should be nothing offensive about General Blum’s remarks about atheists and agnostics because they happen to be true: when faced with the immediate threat of death unbelievers have a tendency to abandon their condescending attitudes toward religion and they plead with God to protect them, as any sane person would. Such was all General Blum meant. The irony of the whole thing is how liberal and “open-minded” the rest of General’s speech was, saying such things as the military is that it “looks like
America.” Yet, as most people eventually discover, in the liberal world there is always some group that professes to feeling left out and offended no matter how hard a person may try to be inclusive. The American Atheists proved that once again.