"Who Ultimately Rules-the
Courts or the Constitution?, II."
Tue Feb 28, 2006 22:34
VOL. 8, NO. 3 Feb. 27, 2006
"Who Ultimately Rules-the Courts or the Constitution?, II."
By Virginia Armstrong, Ph.D., National Chairman
In our previous Court Watch Briefing," we launched a discussion of the problems associated with federal judges' adherence to "stare decisis," or "the rule of precedent" — the alleged controlling power of previous court decisions over current ones. "Stare decisis" has an honorable, centuries-old place in Anglo-American law. But America's Reconstructionist judges today are pitting a wrong-headed version of precedent against our splendid Constitution, and the Constitution and our culture are both losing.
The irony is that today's "precedent-first" judicial bulldogs are basing their current decisions on past decisions which had no precedent and which were anti-constitutional. This Humpty-Dumpty judicial mentality has created a set of DEADLY DANGERS to the Constitution. These threats include erosion of the "three Cs" — three characteristics which any legal system must possess if it is to survive and thrive. These characteristics include certainty, consistency, and continuity.
In our last Briefing, we examined American law's loss of certainty as typified in federal judges' abortion cases-cases moored in the anti-constitutional, non-precedential decision of Roe v. Wade (1973). Today we examine American judicial Reconstructionism's attack on the second "C" — consistency.
One of the worst examples of the DEADLY DANGER of INCONSISTENCY is the body of judicial decisions concerning religious freedom, particularly decisions pretending to interpret the Establishment Clause of the First Amendment. These decisions are hopelessly inconsistent for several reasons. Establishment Clause decisions of courts are supposedly guided by the mythical "wall of separation" doctrine which the Court read into American law in 1947 (Everson v. Board of Education). This mythical "wall" concept, in turn, led the Court to create the "three-pronged test" for determining when the "wall" had been breached (Lemon v. Kurtzman, 1971). But this test and the "wall" concept are so flawed that various Justices through the last 35 years have described them as "all but useless," "mercurial in application," "unhistorical," "non-textual.," and productive of "insoluble paradoxes" and "unprincipled, conflicting litigation." It is hard to imagine a cl earer description than this of an inconsistent body of law. Indeed, the Court has substantially reworked the Lemon test and often departs from it — creating even more inconsistent law.
Textbook examples of this constitutional quagmire are the Court's decisions regarding the Ten Commandments and the Pledge of Allegiance. In the case of the Alabama Ten Commandments monument involving Chief Justice Roy Moore (Glassroth v. Moore), Federal District Judge Myron Thompson admitted that he lacked "the expertise to formulate [the court's] own definition of religion for First Amendment purposes." This is a seismic break with earlier American law in which "religion" had a definite, intelligible, accepted meaning. The Moore court opinion is even a break with Court decisions of the 1960s in which Justices contrived their own definition of "religion" (ambiguous and inconsistent, but more than that offered by Judge Thompson). Judge Thompson's bald admission is also alarming in his assumption that HE, not the Constitution, should provide the controlling definition of "religion" in these cases. The U. S. Supreme Court declined to review this case.
The Supremes did hear in 2005 cases attacking two Ten Commandment displays in Texas and Kentucky (Van Orden v. Perry; McCreary County v. ACLU of Kentucky). The Court's decisions again reeked of inconsistency as they upheld the Texas display but struck down the Kentucky display. The majority concluded that the circumstances of the two displays were so different as to render one (Texas) constitutional and the other not (Kentucky). A key to the inconsistent Court reasoning in McCreary was that the Kentucky circumstances satisfied the mind-reading Justices that state officials had an unconstitutional "intent." The fact was that the Kentucky display invalidated consisted of nine framed documents of equal size entitled "The Foundations of American Law and Government." Other documents included in this display were the lyrics of the national anthem and a picture of Lady Justice.
A theme running throughout the courts' religious freedom jurisprudence is the argument that "religious pluralism" is necessary and the only constitutional condition allowable in America today. But nothing is more productive of inconsistent law than attempting to intertwine law with "religious pluralism." This is clear in the Pledge of Allegiance case, Elk Grove Unified School District v. Newdow (2004). The Supremes refused on technical grounds to hear this case in which lower courts had outlawed the public school recitation of the Pledge. But the issue will surely come to the Court again. The "pluralism" issue was addressed eloquently by two pro-Pledge judges on the Ninth Circuit Court: Outlawing the Pledge, they correctly observed, afforded Michael Newdow "the right to impose his view on others . . . [and gave him] a right to be fastidiously intolerant and self-indulgent [i.e., non-pluralistic]." Furthermore, "the silence the majority [i.e., pro-Newdow judges] required is not neutral . . . . The absolute prohibition on any mention of God in our schools creates a bias against religion." ". . . does atheism become the default religion protected by the Establishment Clause?"
The bottom line is that neither a "wall of separation" nor "religious pluralism" is possible. "The extent to which a government can be neutral and equally tolerant of all deeply held values, including religious beliefs, has very definite limits . . . . Increasingly, government will be compelled to make choices between conflicting values, including religious values" (law professor Carl Esbeck, 1982).
Any judge today who tries to ground his/her decisions on the latest precedents of the federal courts, is attempting to build his judicial house on hopelessly shifting sands. Shall the judge follow the Lemon test or not? If so, on which prong(s) does he/she rely? If not, what is the judge's foundation? If the judge purposes to further religious pluralism, he/she elevates pluralism to a position of supremacy above other religious values, which inhibits non-pluralistic religions, which violates the "wall of separation" concept. Precedent fails, the Constitution loses, and our culture continues its headlong plunge toward disaster. Only a return to the Constitution, properly interpreted and applied, can return to American law the second of the "three Cs" necessary for constitutional health — the condition of CONSISTENCY.
National Chairman: Virginia Armstrong, Ph.D. * 2438 Industrial Blvd. PMB 190 * Abilene, TX 79605
325-673-3020 * E-mail: CourtWatch@EagleForum.org
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"All tyranny needs to gain a foothold is for people of
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Find elected officials, including the president, members of
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====================================
Events at Waco, Texas, February 28 to April 19, 1993
Why did the Bureau of Alcohol, Tobacco, and Firearms raid the Branch Davidian compound on February 28, 1993?
Who fired first on that day, the Branch Davidians or the ATF?
Had the Branch Davidian leader, David Koresh, been abusing children in the compound?
Why did Attorney General Janet Reno approve the FBI's CS gas plan to end the standoff at the compound after 51 days?
What role did President Clinton play in overseeing the handling of the crisis and in authorizing the tear-gas plan?
Did the CS gas harm any of the people, especially the twenty-two children, inside the compound?
Why did the tear gas fail to roust the Branch Davidians out of the compound?
Who started the fire that erupted a little more than six hours after the FBI began inserting the tear gas on April 19?
What caused the death of more than 80 Branch Davidians inside the compound on April 19?
Have any federal agents been disciplined for wrongdoing in the Waco affair? And were any of the surviving Davidians convicted of federal charges?
Why did the Bureau of Alcohol, Tobacco, and Firearms raid the Branch Davidian compound on February 28, 1993?
The ATF raided the Branch Davidian compound to serve arrest and search warrants as part of an investigation into illegal posession of firearms and explosives there. (Treasury Department press memorandum, July 13, 1995)
Who fired first on that day, the Branch Davidians or the ATF?
The question of who fired first is in dispute. ATF agents who participated in the raid have testified in court and at a congressional hearing that the Branch Davidians fired the first shots. Right after the raid, however, one ATF agent told an investigator that a fellow agent may have shot first, when he killed a dog outside the compound. The agent later retracted the statement, saying that the Branch Davidians had initiated the gunfire. Surviving Branch Davidians have maintained that they did not shoot their guns until they were fired upon by federal authorities.
Had the Branch Davidian leader, David Koresh, been abusing children in the compound?
The issue of whether David Koresh sexually and physically abused children in the compound is also not entirely resolved. Koresh acknowledged on a videotape sent out of the compound during the standoff that he had fathered more than 12 children by several "wives" who were as young as 12 or 13 when they became pregnant. ("Why Waco?," by James D. Tabor and Eugene V. Gallagher.) A review of Waco events published by the Justice Department in October 1993 concludes, "Evidence suggested that Koresh had 'wives' who were in their mid-teens, that Koresh told detailed and inappropriate sexual stories in front of the children during his Bible study sessions, and that Koresh taught the young girls that it was a privilege for them to become old enough (i.e., reach puberty) to have sex with him." (Report to the Deputy Attorney General on the Events at Waco, Texas February 28 to April 19, 1993.)
There is considerable evidence as well that Koresh harshly disciplined the children in the compound. According to affidavits obtained by the FBI from several former Branch Davidians and from Dr. Bruce Perry, a psychiatrist who examined several Branch Davidian children, Koresh beat young children with a wooden spoon or withheld food for as much as a day to punish them. (op cit pp. 224-226)
Assuming that Koresh had been abusing children before Feb. 28, 1993, a related question is whether the abuse continued during the 51-day siege of the compound. At first Reno explained that a paramount reason for approving the tear-gas assault on April 19 was that "babies were being beaten." ("Reno Says, I Made the Decision," WPost, Apr. 20, 1993.) FBI Director Sessions, however, said the next day there was "no contemporary evidence" of child abuse. ( Report to the Deputy Attorney General on the Events at Waco, Texas, February 28 to April 19, 1993.) And Reno revised her statement several months later, agreeing there was no evidence of ongoing child abuse by Koresh, who was wounded in the shootout on Feb. 28, at Mt. Carmel, as the Branch Davidians' residence was known. ("Waco Siege Prompts Crisis Training for Top Justice Department Officials," WPost, Dec. 9, 1993.)
Why did Attorney General Janet Reno approve the FBI's CS gas plan to end the standoff at the compound after 51 days?
Reno has cited a number of factors to explain why she endorsed the tear-gas plan. She has said that she had concluded that negotiations with the Branch Davidians were indefinitely stalemated, that the FBI's hostage rescue team on duty at Waco was becoming fatigued, that the security perimeter established by the FBI around the compound was endangered and that the children inside the compound were at risk because of deteriorating sanitary conditions and the potential for sexual and physical abuse. According to Justice Department reports and congressional testimony, Reno gave only a cursory reading of the three-inch thick operations plan and back-up documentation about CS gas provided by the FBI two days before the assault on the compound. (Joint Hearing of the Crime Subcommittee of the House Judiciary Committee and National Security, International Affairs and Criminal Justice Subcommittee of the House Government Reform and The Oversight Committee, July 1995; Report to the Deputy Attorney General on the Events at Waco, Texas February 28 to April 19, 1993.)
[Janet Reno's opening statement before the Congressional Hearings on August 1, 1995.]
What role did President Clinton play in overseeing the handling of the crisis and in authorizing the tear-gas plan?
In the early days of the crisis Clinton endorsed a "wait-and-see" strategy, asking to be consulted before a change in strategy. On April 18, in a conversation with Reno, the President endorsed the gas plan. Although Clinton distanced himself from the matter after April 19, saying it has been Reno's call, FRONTLINE has learned that Clinton apparently followed developments at Waco closely through some of his closest White House aides.
More Questions
http://www.pbs.org/wgbh/pages/frontline/waco/topten2.html
----------------------------------------------------------
"Who Ultimately Rules-the Courts or the Constitution?, II."
By Virginia Armstrong, Ph.D., National Chairman
In our previous Court Watch Briefing," we launched a discussion of the problems associated with federal judges' adherence to "stare decisis," or "the rule of precedent" — the alleged controlling power of previous court decisions over current ones. "Stare decisis" has an honorable, centuries-old place in Anglo-American law. But America's Reconstructionist judges today are pitting a wrong-headed version of precedent against our splendid Constitution, and the Constitution and our culture are both losing.
The irony is that today's "precedent-first" judicial bulldogs are basing their current decisions on past decisions which had no precedent and which were anti-constitutional. This Humpty-Dumpty judicial mentality has created a set of DEADLY DANGERS to the Constitution. These threats include erosion of the "three Cs" — three characteristics which any legal system must possess if it is to survive and thrive. These characteristics include certainty, consistency, and continuity.
In our last Briefing, we examined American law's loss of certainty as typified in federal judges' abortion cases-cases moored in the anti-constitutional, non-precedential decision of Roe v. Wade (1973). Today we examine American judicial Reconstructionism's attack on the second "C" — consistency.
One of the worst examples of the DEADLY DANGER of INCONSISTENCY is the body of judicial decisions concerning religious freedom, particularly decisions pretending to interpret the Establishment Clause of the First Amendment. These decisions are hopelessly inconsistent for several reasons. Establishment Clause decisions of courts are supposedly guided by the mythical "wall of separation" doctrine which the Court read into American law in 1947 (Everson v. Board of Education). This mythical "wall" concept, in turn, led the Court to create the "three-pronged test" for determining when the "wall" had been breached (Lemon v. Kurtzman, 1971). But this test and the "wall" concept are so flawed that various Justices through the last 35 years have described them as "all but useless," "mercurial in application," "unhistorical," "non-textual.," and productive of "insoluble paradoxes" and "unprincipled, conflicting litigation." It is hard to imagine a cl earer description than this of an inconsistent body of law. Indeed, the Court has substantially reworked the Lemon test and often departs from it — creating even more inconsistent law.
Textbook examples of this constitutional quagmire are the Court's decisions regarding the Ten Commandments and the Pledge of Allegiance. In the case of the Alabama Ten Commandments monument involving Chief Justice Roy Moore (Glassroth v. Moore), Federal District Judge Myron Thompson admitted that he lacked "the expertise to formulate [the court's] own definition of religion for First Amendment purposes." This is a seismic break with earlier American law in which "religion" had a definite, intelligible, accepted meaning. The Moore court opinion is even a break with Court decisions of the 1960s in which Justices contrived their own definition of "religion" (ambiguous and inconsistent, but more than that offered by Judge Thompson). Judge Thompson's bald admission is also alarming in his assumption that HE, not the Constitution, should provide the controlling definition of "religion" in these cases. The U. S. Supreme Court declined to review this case.
The Supremes did hear in 2005 cases attacking two Ten Commandment displays in Texas and Kentucky (Van Orden v. Perry; McCreary County v. ACLU of Kentucky). The Court's decisions again reeked of inconsistency as they upheld the Texas display but struck down the Kentucky display. The majority concluded that the circumstances of the two displays were so different as to render one (Texas) constitutional and the other not (Kentucky). A key to the inconsistent Court reasoning in McCreary was that the Kentucky circumstances satisfied the mind-reading Justices that state officials had an unconstitutional "intent." The fact was that the Kentucky display invalidated consisted of nine framed documents of equal size entitled "The Foundations of American Law and Government." Other documents included in this display were the lyrics of the national anthem and a picture of Lady Justice.
A theme running throughout the courts' religious freedom jurisprudence is the argument that "religious pluralism" is necessary and the only constitutional condition allowable in America today. But nothing is more productive of inconsistent law than attempting to intertwine law with "religious pluralism." This is clear in the Pledge of Allegiance case, Elk Grove Unified School District v. Newdow (2004). The Supremes refused on technical grounds to hear this case in which lower courts had outlawed the public school recitation of the Pledge. But the issue will surely come to the Court again. The "pluralism" issue was addressed eloquently by two pro-Pledge judges on the Ninth Circuit Court: Outlawing the Pledge, they correctly observed, afforded Michael Newdow "the right to impose his view on others . . . [and gave him] a right to be fastidiously intolerant and self-indulgent [i.e., non-pluralistic]." Furthermore, "the silence the majority [i.e., pro-Newdow judges] required is not neutral . . . . The absolute prohibition on any mention of God in our schools creates a bias against religion." ". . . does atheism become the default religion protected by the Establishment Clause?"
The bottom line is that neither a "wall of separation" nor "religious pluralism" is possible. "The extent to which a government can be neutral and equally tolerant of all deeply held values, including religious beliefs, has very definite limits . . . . Increasingly, government will be compelled to make choices between conflicting values, including religious values" (law professor Carl Esbeck, 1982).
Any judge today who tries to ground his/her decisions on the latest precedents of the federal courts, is attempting to build his judicial house on hopelessly shifting sands. Shall the judge follow the Lemon test or not? If so, on which prong(s) does he/she rely? If not, what is the judge's foundation? If the judge purposes to further religious pluralism, he/she elevates pluralism to a position of supremacy above other religious values, which inhibits non-pluralistic religions, which violates the "wall of separation" concept. Precedent fails, the Constitution loses, and our culture continues its headlong plunge toward disaster. Only a return to the Constitution, properly interpreted and applied, can return to American law the second of the "three Cs" necessary for constitutional health — the condition of CONSISTENCY.
National Chairman: Virginia Armstrong, Ph.D. * 2438 Industrial Blvd. PMB 190 * Abilene, TX 79605
325-673-3020 * E-mail: CourtWatch@EagleForum.org
APFN-1 YahooGroups:
Subscribe: http://groups.yahoo.com/group/apfn-1/join
Unsubscribe: apfn-1-unsubscribe@yahoogroups.com
APFN MSG BOARD:
`In a time of universal deceit, telling the truth is a revolutionary act.'
http://disc.yourwebapps.com/Indices/149495.html
APFN CONTENTS PAGE:
http://www.apfn.org/old/apfncont.htm
"RADIO YOUR WAY" APFN POGO NETWORK (( WOW!! ))
"All tyranny needs to gain a foothold is for people of
good conscience to remain silent" -- Thomas Jefferson
http://www.apfn.net/POGO.HTM
Find elected officials, including the president, members of
Congress, governors, state legislators, local officials, and more.
http://congress.org/congressorg/dbq/officials/
SUPPORT APFN
http://www.apfn.org/apfn/kenvardon.htm
====================================
Events at Waco, Texas, February 28 to April 19, 1993
Why did the Bureau of Alcohol, Tobacco, and Firearms raid the Branch Davidian compound on February 28, 1993?
Who fired first on that day, the Branch Davidians or the ATF?
Had the Branch Davidian leader, David Koresh, been abusing children in the compound?
Why did Attorney General Janet Reno approve the FBI's CS gas plan to end the standoff at the compound after 51 days?
What role did President Clinton play in overseeing the handling of the crisis and in authorizing the tear-gas plan?
Did the CS gas harm any of the people, especially the twenty-two children, inside the compound?
Why did the tear gas fail to roust the Branch Davidians out of the compound?
Who started the fire that erupted a little more than six hours after the FBI began inserting the tear gas on April 19?
What caused the death of more than 80 Branch Davidians inside the compound on April 19?
Have any federal agents been disciplined for wrongdoing in the Waco affair? And were any of the surviving Davidians convicted of federal charges?
Why did the Bureau of Alcohol, Tobacco, and Firearms raid the Branch Davidian compound on February 28, 1993?
The ATF raided the Branch Davidian compound to serve arrest and search warrants as part of an investigation into illegal posession of firearms and explosives there. (Treasury Department press memorandum, July 13, 1995)
Who fired first on that day, the Branch Davidians or the ATF?
The question of who fired first is in dispute. ATF agents who participated in the raid have testified in court and at a congressional hearing that the Branch Davidians fired the first shots. Right after the raid, however, one ATF agent told an investigator that a fellow agent may have shot first, when he killed a dog outside the compound. The agent later retracted the statement, saying that the Branch Davidians had initiated the gunfire. Surviving Branch Davidians have maintained that they did not shoot their guns until they were fired upon by federal authorities.
Had the Branch Davidian leader, David Koresh, been abusing children in the compound?
The issue of whether David Koresh sexually and physically abused children in the compound is also not entirely resolved. Koresh acknowledged on a videotape sent out of the compound during the standoff that he had fathered more than 12 children by several "wives" who were as young as 12 or 13 when they became pregnant. ("Why Waco?," by James D. Tabor and Eugene V. Gallagher.) A review of Waco events published by the Justice Department in October 1993 concludes, "Evidence suggested that Koresh had 'wives' who were in their mid-teens, that Koresh told detailed and inappropriate sexual stories in front of the children during his Bible study sessions, and that Koresh taught the young girls that it was a privilege for them to become old enough (i.e., reach puberty) to have sex with him." (Report to the Deputy Attorney General on the Events at Waco, Texas February 28 to April 19, 1993.)
There is considerable evidence as well that Koresh harshly disciplined the children in the compound. According to affidavits obtained by the FBI from several former Branch Davidians and from Dr. Bruce Perry, a psychiatrist who examined several Branch Davidian children, Koresh beat young children with a wooden spoon or withheld food for as much as a day to punish them. (op cit pp. 224-226)
Assuming that Koresh had been abusing children before Feb. 28, 1993, a related question is whether the abuse continued during the 51-day siege of the compound. At first Reno explained that a paramount reason for approving the tear-gas assault on April 19 was that "babies were being beaten." ("Reno Says, I Made the Decision," WPost, Apr. 20, 1993.) FBI Director Sessions, however, said the next day there was "no contemporary evidence" of child abuse. ( Report to the Deputy Attorney General on the Events at Waco, Texas, February 28 to April 19, 1993.) And Reno revised her statement several months later, agreeing there was no evidence of ongoing child abuse by Koresh, who was wounded in the shootout on Feb. 28, at Mt. Carmel, as the Branch Davidians' residence was known. ("Waco Siege Prompts Crisis Training for Top Justice Department Officials," WPost, Dec. 9, 1993.)
Why did Attorney General Janet Reno approve the FBI's CS gas plan to end the standoff at the compound after 51 days?
Reno has cited a number of factors to explain why she endorsed the tear-gas plan. She has said that she had concluded that negotiations with the Branch Davidians were indefinitely stalemated, that the FBI's hostage rescue team on duty at Waco was becoming fatigued, that the security perimeter established by the FBI around the compound was endangered and that the children inside the compound were at risk because of deteriorating sanitary conditions and the potential for sexual and physical abuse. According to Justice Department reports and congressional testimony, Reno gave only a cursory reading of the three-inch thick operations plan and back-up documentation about CS gas provided by the FBI two days before the assault on the compound. (Joint Hearing of the Crime Subcommittee of the House Judiciary Committee and National Security, International Affairs and Criminal Justice Subcommittee of the House Government Reform and The Oversight Committee, July 1995; Report to the Deputy Attorney General on the Events at Waco, Texas February 28 to April 19, 1993.)
[Janet Reno's opening statement before the Congressional Hearings on August 1, 1995.]
What role did President Clinton play in overseeing the handling of the crisis and in authorizing the tear-gas plan?
In the early days of the crisis Clinton endorsed a "wait-and-see" strategy, asking to be consulted before a change in strategy. On April 18, in a conversation with Reno, the President endorsed the gas plan. Although Clinton distanced himself from the matter after April 19, saying it has been Reno's call, FRONTLINE has learned that Clinton apparently followed developments at Waco closely through some of his closest White House aides.
More Questions
http://www.pbs.org/wgbh/pages/frontline/waco/topten2.html
----------------------------------------------------------
