U. S. Constitution – Page 3 – Maverick Philosopher

Dennis Prager: The Charges Against Kavanaugh Should be Ignored

This piece by Dennis Prager is sure to outrage the Left. Prager takes a step back and uncovers an assumption that almost everyone else is making. The assumption is that IF the young Kavanaugh had groped Dr. Ford in the manner she describes, THEN that would be good grounds for non-confirmation.

But is the assumption true?

Suppose it could be shown that Brett Kavanaugh, 36 years ago, did to Christine Blasey Ford what she claims he did. That cannot be shown, of course, due to a lack of evidence, but just suppose. (And if there is no evidence, then it is absurd to call for an FBI investigation. What would they investigate?) How does a youthful peccadillo nullify the rest of an impeccable life and distinguished career? To believe that it does one would have to assume the following:

a) What a middle-age adult did in high school is all we need to need to know to evaluate an individual’s character — even when his entire adult life has been impeccable.

b) No matter how good and moral a life one has led for ten, 20, 30, 40, or even 50 years, it is nullified by a sin committed as teenager.

No decent — or rational — society has ever believed such nihilistic nonsense.

Now let ME take a further step back.

What is this whole controversy really and fundamentally about? Is it about Kavanaugh's moral fitness to serve on the Supreme Court?

Obviously not. It is not about his moral fitness, but about his failure to meet an ideological litmus test. The Left cannot abide the thought of an originalist/textualist taking over the Justice Anthony Kennedy SCOTUS swing slot. For with Kavanaugh the conservatives would have the upper hand. This also explains why Gorsuch, the Scalia replacement, was confirmed with relative ease.

Suppose Kavanaugh were a leftist who believed in an 'open' or 'living' constitution. Would the DEMS be troubled by the baseless allegation, 36 years after the alleged 'fact,' of a youthful bit of bad behavior? Of course not! They would be protesting with the same sorts of arguments now being used by Republicans.

So let's all try to be honest for a change. What is really going here is an important battle in the war for the soul of America. Will we allow her to be "fundamentally transformed" by the Left or will we preserve her as she was founded to be?

To achieve the latter, the Constitution must be honored and applied in its original meaning. Kavanaugh's is not the originalism of original intent of the Founders, but the originalism of original public meaning.

As for Christine Blasey Ford, she is being used as tool by the Dems for their ideological purpose.

Kavanaugh is in Like Flynn

And what little credibility the Dems had left is out like Stout. (G. F. Stout?)

Here:

Opponents of Kavanaugh lost the fight when they lost their marbles. His foes on the Senate Judiciary Committee and allied activists ensured that opponents to the nomination appear to be a pack of wild cranks.

[. . .]

Not only did the outbursts seem uncivil and destructive of Senate decorum, they may have violated federal criminal laws — including 40 U.S.C. 5104 — against disrupting congressional proceedings. Sen. Dick Durbin (D-Ill.), instead of criticizing the criminal bedlam, called it “the noise of democracy.”

There's that word 'democracy' again! The chuckleheads need to define it or drop it. What do the Dems mean? Mob rule? The rejection of all procedural rules? The treating of the Constitution as if it were a tabula rasa?

Do Dicky Durbin and his ilk think the word has a talismanic power? Please do tell us what you mean, Dicky.

Then Sen. Cory Booker (D-N.J.) made his contribution. With great fanfare, Booker announced his “Spartacus moment,” daring to disclose committee confidential documents that revealed Kavanaugh’s opinions about racial profiling. Of course, breaking rules appeals to the disruptive gang in the gallery, so Booker’s play seemed well-designed.

Yet, in execution, Booker’s plan was a disaster for Kavanaugh foes. Not only did Kavanaugh not support racial profiling, the documents were not subject to committee confidential restraints in the first place.

And then there is an important point I make in a very fine entry that I warmly recommend for your perusal, namely, that there is no such thing as racial profiling.

Robert Bork’s Originalism

Here you will gain some insight into the context of the Kavanaugh nomination fight. Excerpts:

In Bork’s view, the Constitution derives its moral authority, as law, from the fact that the states ratified it. Accordingly, its text should be interpreted as it was understood at the time of its adoption. Judges have no warrant to expand upon the constitutional text—or to invent new rights—just because they favor the result in a particular case. Judicial power, unless constrained by the Constitution’s original meaning, will become excessive, usurping power properly reserved to the elected branches, or the people. When judges exceed their proper role, by recognizing “liberties” not credibly drawn from the constitutional text or history, they diminish citizens’ most important freedom: the right to govern themselves in a representative democracy.

[. . .]

Fidelity to the law—judicial restraint—is controversial only if one believes that courts should be playing a policymaking role. If the Supreme Court is free to reach decisions based on nothing more than the individual justices’ predilections, the potential beneficiaries of Supreme Court lawmaking will be highly motivated to support or oppose nominees solely based on their political views, rather than their integrity, competence, or commitment to the rule of law. And it is far easier for liberal-interest groups to influence the composition of a nine-member court than it is to control the Congress, the presidency, and the democratically elected governments of the 50 states.

Leftist Justices Don’t Like the Law

If you value the rule of law, you absolutely must oppose the hard-Left Democrat Party. Andrew Klavan:

In general, the leftist minority on the [Supreme] court has shown itself no friend to the law. It really is disturbing. In Hawaii, only the five conservatives agreed that the president had the legal power to bar travel from certain countries he deemed dangerous. Really? This is what the law says:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

You don't have to be a lawyer to find that crystal clear. And you don't have to like Trump's so-called "travel ban" to see he has the legal power to implement it. And yet, in a dissent, leftist Sonia Sotomayor claimed that Trump's anti-Muslim campaign rhetoric somehow overrode the facts of the case. In other words, what would have been legal for a president she liked was not legal because . . . Trump.

If the rule of law can be overridden by the emotions of the people, the machinations of officials or the prejudices of courts, we can no longer depend on equal treatment or representative government. Given the fact that most of the above cases were decided by only one vote, news of Justice Anthony Kennedy's retirement from the court comes as something of a relief. Kennedy has been an unreliable vote for liberty and if Trump can put another Gorsuch-like constitutionalist in there, all of our freedoms will be safer.

It is not too much to ask the Supreme Court to support the rule of law.

For a leftist like Sotomayor, the U. S. Constitution is a tabula rasa upon which 'justices' of her ilk feel entitled to write any leftist rubbish they like.

But we got lucky and Trump won. We are now poised to get a second originalist (after Gorsuch) on the high court. Brace yourself for the barking and borking that is about to begin.

And then there is Ruth Bader Ginsburg who, at age 85, cannot be long for this earth. Do I wish her dead? No, I wish her off the high court.

I am reminded of the doctrine of double effect. If I meet your lethal attack with lethal force, my intention is not to kill you, but to stop your attack. And this despite the fact that my defense, to be effective, may reasonably be supposed to issue in your death. I cannot stop you without killing you, but my intention is not to kill you but to stop you.

Is that sophistry? I don't think so.

The analogy to Ginsburg to straightforward: I don't want her dead, I want her off the court, even if her dying is the only eventuality that will lead to the desired result.

Details on double effect here.

SCOTUS Rules 5-4 to Uphold ‘Muslim’ Travel Ban

Yet another victory for President Trump and for common sense. And yet another embarrassment for the Never-Trumpers who refused to support Trump and who, by their refusal, indirectly supported Hillary who would never have supported any such travel ban.

And of course, if the Never-Trumpers had their way, the composition of the Court would not have been favorable to conservative rulings.

(Once more: a Never-Trumper is a conservative of some sort or other who opposes Trump. Bill Kristol for example. Remember him? Every Never-Trumper is an Anti-Trumper, but not conversely. Is this just an arbitrary stipulation on my part? No. This is the way the terms are used by those in the know who value clarity of thought and the distinctions that support it.)

Predictably, Associate Justice Sonia Sotomayor wrote a dissent that is rather less than intelligent:

“This repackaging does little to cleanse [the policy] of the appearance of discrimination that the president’s words have created,” she said. “Based on the evidence in the record, a reasonable observer would conclude that the proclamation was motivated by anti-Muslim animus.”

On the contrary, a reasonable observer would conclude that Sotomayor should not be sitting on the Supreme Court. I'll give her this, though: she has a beautiful name.

Imagine the composition of the Court after eight years of Hillarity.

Seeing as how we are in the vicinity of Islamist issues, I now refer you to William Kilpatrick's latest, Islamization in the Schools.

The Second Amendment, First Principles, and the Right of Revolution

Trigger Warning! Likely to cause snowflake meltdown.

Edward J. Erler offers one of the best explanations of the Second Amendment I have ever read. Clear, scholarly, and right-headed. The folly of Justice Stevens is exposed. An excerpt, with bolding added:

Furthermore, the Declaration specifies that when government becomes destructive of the ends for which it is established—the “Safety and Happiness” of the people—then “it is the Right of the People to alter or to abolish it, and to institute new Government.” This is what has become known as the right of revolution, an essential ingredient of the social compact and a right which is always reserved to the people. The people can never cede or delegate this ultimate expression of sovereign power. Thus, in a very important sense, the right of revolution (or even its threat) is the right that guarantees every other right. And if the people have this right as an indefeasible aspect of their sovereignty, then, by necessity, the people also have a right to the means to revolution. Only an armed people are a sovereign people, and only an armed people are a free people—the people are indeed a militia.

On Opposing a Dangerous Ideology that is also a Religion

This article by William Kilpatrick bears on my ongoing conversation with a Canadian philosopher about Islam, religious tests, and constitutional interpretation. Last exchange here. I'll pull a few quotations from Professor Kilpatrick and add some comments.

The idea of opposing dangerous ideologies is not foreign to Americans, but the idea of opposing an ideology that is also a religion is more problematic. It has become increasingly problematic now that we live in an era in which merely disagreeing with another’s opinions is tantamount to a hate crime.

But obviously, to dissent from a proposition is not to hate a person. Nor is dissent on the part of the dissenter a sign of mental malfunction. Liberals who would smear Kilpatrick by calling him an 'Islamophobe' are either ignorant or vicious. Ignorant, if they do not understand that a phobia is an irrational fear. Vicious, if they mean to silence such a truth-teller by questioning his sanity.

The U.S. Constitution in the first and second clauses of its First Amendment guarantees freedom of religion. But does Islam fall under this protection? Ought there be freedom of religion for a religion that seeks to eliminate every other religion? Obviously not. The Constitition is not a suicide pact. I argue this out in painful detail in my last exchange with the Canadian.

I don't deny that Islam is a religion. It may even be a way to God for some who know of no better Way. (The allusion is to via, veritas, vita.)But Islam is just as much, if not more, a political ideology that seeks to subvert the principles and values of the American founding. Let us note en passant that this explains what would otherwise be very hard to explain, namely, why the Left is in cahoots with Islam. For the Left too is out to subvert said principles and values. Islamists must view leftists as useful idiots who will be sent packing to the realm of the black-eyed virgins should the former gain the (knife-wielding) upper hand. Leftists are in for a surprise if they think that they can use Islamists for leftist purposes.

I feel a rant coming on, so back to the sober Irishman:

Under Pope Benedict XVI there were signs—such as his Regensburg Address—that the Church was developing a more realistic view of Islam. But whatever ground was gained by Benedict was given up by Francis. Indeed, it seems fair to say that under Francis, the Church’s understanding of Islam regressed. Perhaps the most glaring example of this regression can be found in the Pope’s assertion that “authentic Islam and a proper reading of the Koran are opposed to every form of violence.” It’s hard to imagine any of his predecessors or any of their advisors making a similar claim.

Holy moly! Could Bergoglio the Boneheaded be that benighted? Yes, take a gander at this:

By contrast, Church leaders and Pope Francis in particular, have become, in effect, enablers of Islam. Pope Francis has denied that Islam sanctions violence, has drawn a moral equivalence between Islam and Catholicism (“If I speak of Islamic violence, I must speak of Catholic violence”), and has campaigned for the admittance of millions of Muslim migrants into Europe. Moreover, he has criticized those who oppose his open borders policy as hard-hearted xenophobes. In return for his efforts, he has been publicly thanked by several Muslim leaders for his “defense of Islam.”

One might be tempted to use the word “collaborator” instead of “enabler.” But collaborator is too strong a word. In its World War II context, it implies a knowing consent to and cooperation with an evil enterprise. It seems clear to me that the pope and others in the hierarchy are enabling the spread of an evil ideology; however, it’s not at all clear that they understand what they’re doing. Francis, for instance, seems to sincerely believe that all religions are roughly equal in goodness. Thus for him, the spread of any religion must seem like a good thing. It’s an exceedingly naïve view, but one that seems honestly held.

The Constitution, Reason, and Abstract Principles

This entry continues the 'religious test' discussion. (Last installment here.) The Canadian writes,

I agree that there's no incoherence in a statement such as "(1) The Constitution guarantees freedom of religion and disallows religious tests. (2) The Constitution guarantees these things subject to the proviso that the religion in question is compatible with the principles of the American founding." But why is the most reasonable interpretation one that projects such a proviso on to the text? What are the criteria for a reasonable interpretation? On the one hand, a reasonable interpretation might be one that results in a constitution that reasonable people could accept. Naturally, if this is the criterion, no reasonable interpretation can produce a constitution that, in practice, would create a society where that same constitution would be destroyed. On the other hand, it might simply be one that's adequately supported by the textual evidence (and other evidence, e.g., reasonably hypotheses about the authors' intentions). Or maybe a reasonable interpretation is subject to both constraints. In any case there is a tension between the two. As you say, there's really no good textual evidence (or any other kind, as far as I know) to indicate that the Constitution really does implicitly limit the scope of religious freedom so as to preclude the freedom to practice traditional Islam, or that it limits the scope of 'No religious test' so as to allow for tests with respect to Islam. I'd argue that a reasonable interpretation in the second sense–the most reasonable one, in that sense–is unreasonable in the first sense.

"What are the criteria for a reasonable interpretation?" I agree that there is no evading this difficult question. One answer is that a reasonable interpretation is an internally coherent one. The First Amendment guarantees the "free exercise" of religion and "freedom of speech," inter alia. Now if "no religious test" (Article VI, section III) is interpreted in so latitudinarian a fashion as to allow Sharia-supporting Muslims to gain political power, then we are on the road to an internal contradiction. For these Muslims, once in power, will of course try to shut down the free exercise of religions other than Islam, and they will attempt to prohibit freedom of speech if it involves any criticism, no matter how respectful, of Muhammad or of any aspect of their religion. They will have used the Constitution to destroy the Constitution. They will have exploited our freedom of religion to eliminate freedom of religion, and our freedom of speech to eliminate freedom of speech.

It seems to me that the Constitution cannot be interpreted so as to allow the emergence of the following logical contradiction:

a) Under no circumstances shall (i) the freedom to practice the religion of one's choice (or to refrain from the practice of any religion) be prohibited by the government, or (ii) the freedom to express one's view publicly be abridged.

b) Under some circumstances (e.g., when enough Muslim fundamentalists gain power) the freedom of religion and the freedom of speech many be prohibited and abridged.

Note that the (a)-(b) dyad is logically inconsistent: the limbs cannot both be true. What we have here is a strict logical contradiction.

But to embrace a logical contradiction is the height of unreasonableness.

I conclude that to interpret the Constitution in such a way that it allows for the emergence of the above contradiction is unreasonable. The solution is obvious to me: one cannot allow a destructive political ideology such as Islam to count as a religion for purposes of Constitutional interpretation. I am conceding that Islam is a religion and not a mere political ideology masquerading as a religion, and I am conceding that it is a religion in its own right and not a Christian heresy; the point is that it is a religion-cum-political ideology that is incompatible with the principles and values of the American founding.

Therefore, Islam ought not count as a religion when it comes to interpreting the Constitution. It may well be a way to God for those brought up on it and who know no better way, and it deserves respect for that reason. But this is no reason to abstract from its totalitarian and theocratic political nature, a nature at war with our political principles.

The Canadian continues:

In any case, I think that for your argument you need the first notion of reasonable interpretation. But then there's a problem: Leftists, whose ideas about reasonable political principles are very different from ours, can now argue on a similar basis that we should just ignore the seemingly plain meaning of the Constitution in cases where it conflicts with their values. For instance, they can argue that since it's just not reasonable to let citizens buy AR-15s, the 2nd Amendment must be interpreted in such a way that citizens don't have that right. That seems worrisome. If there isn't even a generally agreed meaning for the constitution, the only way to politically resolve such disagreements is by some kind of debate over ultimate aims or values; but I know you agree with me that that isn't likely to happen either. So it seems wise to insist that the constitution's meaning is the meaning of the text, not the meaning that we think it would have or should have in order to be most reasonable. But then we're back to the problem that the text just doesn't seem to exclude Islamic freedom of religion, or to allow for a "religious test" in that case–or even to exclude the possibility that the Constitution is just internally inconsistent in some respects…

In many cases there is no "plain meaning." The meaning has to be 'excavated.' Does "establishment of religion" have a plain meaning in the First Amendment? (That's a rhetorical question.) "Congress shall make no law respecting an establishment of religion . . . ." The meaning is open to interpretation. Or take the Second Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Does 2A bear its meaning on its sleeve? Of course not. What is the Militia? Is the right individual or collective? Does the initial clause supply a reason, or the only reason, in justification of the right to keep and bear arms? I have argued elsewhere that it supplies a reason, not the only reason. I am sure many if not most would disagree.

So I deny the Canadian's assumption that the Constitution has a plain meaning that can just be 'read off' the text. There is no avoiding interpretation in the light of principles that are not themselves articulated in the Constitution. The Law of Non-Contradiction, for example, is not stated in the Constitution. We bring that principle to the text, and reasonably so.

Or consider the Principle of Charity in interpretation. To save keystrokes I won't formulate the principle. My astute readers know more or less what it is. Well, does "All men are created equal" in the Declaration have a plain meaning? There are benighted souls who think it implies the empirical equality of all human beings. But this violates the Principle of Charity since if the declaration in the Declaration were so interpreted it would come out false! The Charity principle, however, is not to be found in any of the founding documents; we bring it to the text and we do so reasonably.

There is no avoiding interpretation. The text does not have a plain meaning. The other extreme, however, is far worse. There are those who say that the Constitution means whatever SCOTUS says it means. But then there is no text; there is a tabula rasa upon which people in black robes write whatever they want. The most SCOTUS can do is decide upon an enforceable meaning among candidate possibilities that find support in the text. That alone is the reasonable view.

For example, are 2A rights collective or individual? It was decided that they are individual. SCOTUS in this decision came to the 'right' decision. Yes, my use of 'right' is tendentious. More on this problem below.

What I am saying, then, is that there is a text, not a tabula rasa; the text has a meaning; the meaning is not obvious; the meaning is subject to interpretation in the light of principles brought to the text.

But whose principles are these? Those of a reasonable person. But what constitutes reasonableness? Here is where the crunch comes, as my Canadian interlocutor fully appreciates. SCOTUS has the power to lay down the law and enforce an interpretation of the Constitution. But who has the power to decide what the principles of rationality are? Logically prior question: Are the principles of rationality matters of decision at all?

The Canadian concludes:

We might be back to a recurring deeper disagreement here. I don't think that any system of abstract principles and values is enough to provide a framework for a workable society. I think some kind of pre-rational or pre-conceptual horizon of meaning and practice and natural community is the basis; explicit principles and values have a role, but only when they're understood by everyone to operate within that specific cultural world. The principles of "no religious test" or "freedom of religion" were just fine when they were only being applied to a fairly small range of fairly similar religions, practiced by relatively similar people. (And, sure, there were always some who were not so similar–Africans, Amerindians–but they were small in number and had no real influence.) Once every religion on earth was included in American society, that was bound to create insoluble problems. Of course, one option is to simply say that there will be freedom of religion for a specific list of religions, and only those ones. But that seems contrary to other traditional American principles. I suspect that the very idea of "religion" that we in the west tend to take for granted is really an artefact of our specific religious and cultural heritage. There is probably no useful general account of "religion" across all human cultures. So it would be unwise to propose any kind of freedom for that kind of thing.

I agree that abstract principles and values are not enough. They have to reflect a (temporally) prior pre-conceptual shared understanding that is taken for granted. The principles and values cannot be imposed ab extra, but must be a sort of distillate or articulation on the conceptual plane of what is already tacitly understood and accepted at the pre-conceptual level. Otherwise we will argue about the principles.

Argument about first principles is the province of philosophy and is legitimate there. In philosophy, nothing is immune to scrutiny. I should think that 'nothing immune to scrutiny' is a constitutive rule of the philosophical 'game' or enterprise. But if our politics becomes a philosophical free-for-all, then we are in trouble.

There is no place for dogmas in philosophy. But in politics and religion we seem to need them. We need propositions that are unquestionably accepted.

For example, if we don't all accept that there is a sense in which we are all equal, equal as rights-possessors, then we are in deep trouble. And if we don't all accept that certain ideologies such as Islam are incompatible with the principles enshrined in the U. S. Constitution, then we are in deep trouble. Examples are easily multiplied.

I think we agree on why we are in the mess we are in. As you put it, "Once every religion on earth was included in American society, that was bound to create insoluble problems." But benign non-Christian religions such as Buddhism are not the problem. The problem is Islam. The solution is extreme vetting of immigrants from Muslim countries. "Of course, one option is to simply say that there will be freedom of religion for a specific list of religions, and only those ones. But that seems contrary to other traditional American principles."

I disagree. Which traditional American principle are you referring to? Don't tell me "freedom of religion." Islam is not a religion in a sense that could allow it to be on a list of acceptable religions given American principles.

Can a multi-cultural society flourish? There is reason to be skeptical. A society cannot flourish without shared principles and values. But the latter presuppose and grow out of a shared public culture. Acquiescence in and assimilation to that shared culture — Graeco-Roman and Judeo-Christian — must be demanded of all would-be immigrants. Otherwise we will break apart and become easy pickings for foreign aggressors.

I suspect it is already too late to turn things around peacefully. Civil war is a real possibility.

More on “No Religious Test”

A Canadian reader comments and I reply:

I've been thinking about the problem of interpreting "no religious test" in light of your post. It's actually a very difficult problem! I'm almost convinced the correct response is that, unfortunately, if the Constitution is interpreted correctly then fundamentalist Muslims do indeed have the right to hold public office–given the most natural and reasonable interpretation of word meanings and even taking into account the likely intentions of the founding fathers, the history of legal interpretation, etc. It's very hard to get around this. Maybe rather than saying that the Constitution is not a suicide pact on any sane interpretation, we have to say that a sane person would reject both suicide pacts and some parts of the US Constitution.

I grant that it is a very difficult problem, and I am aware that few will be convinced by what I wrote earlier. Ask anybody what Islam is and he will tell you that it is a religion. And then, given that

. . . no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.(Article VI)

it seems to follow via some uncontroversial auxiliary premises that no Muslim shall be barred from running for office simply because he is a Muslim.

But of course among those Muslims are those who have no intention of assimilating and accepting our values but instead seek to impose Sharia on us thereby rejecting our values and principles and subverting our system of government.

So the question I would put to my fellow citizens is: Are you comfortable with an interpretation of the Constitution that allows for its elimination and the values and principles it enshrines?

I am not.

There are those who will say: let anyone immigrate from anywhere and then let the people who have immigrated decide what they want. They call that democracy, and they are all for it. The people are the residents within certain geographical borders, and residency constitutes citizenship. If the residents want blasphemy laws, then we shall have blasphemy laws.

You point out that Islam is not just a religion but also a political ideology. But does that really help? It still is a religion, and if the Constitution forbids any "religious test", without ever saying anything about the scope of "religion", the most natural interpretation is that even religions that double as political ideologies–most religions, really–are subject to the "no religious test" rule. You say that we could declare Islam an inadmissible religion, but then wouldn't effectively mean that the Constitution is self-contradictory? On the one hand, there is to be freedom of religion and no religious test–the subject here being surely just religion in general. On the other hand, only some religions are protected by the "no religious test" rule, and for other religions there can be a religious test after all. That seems incoherent, no?

Islam is a religion, but not a religion in the sense in which Hinduism, Buddhism Judaism, and Christianity are religions. Will you grant me that? Or must I argue it out?

There is no contradiction or incoherence such as you imagine. I take it you find no incoherence in what the logic books call exceptive propositions. For example, "All citizens of the United States are guaranteed freedom of religion except those whose religions are incompatible with the values and principles of the American founding." The following propositions are logically consistent. (1) The Constitution guarantees freedom of religion and disallows religious tests. (2) The Constitution guarantees these things subject to the proviso that the religion in question is compatible with the principles of the American founding.

Now the Constitution does not contain these formulations. But we will agree that the document is subject to interpretation. My claim is that it is most reasonable interpreted along the lines I have suggested.

As for incoherence, I should think that your account is more justly charged with it. A constitution that allows for its own subversion is incoherent if not strictly self-contradictory in the logical sense. The provisions of such a constitution do not cohere with its own continued existence.

Actually I don't know that the idea of a church/state or religion/politics distinction will make sense if we allow that some religions are also political ideologies. If the two can be separated, wouldn't that mean that the religions that are also political must be either banned or else somehow reformulated so that they're only religious? Otherwise, the effect would be to prevent the normal or traditional practice of those religions–since normally or by their nature they'd function as political entities. But then wouldn't that be incompatible with the ideal of freedom of religion? I don't know. Just some rambling thoughts. The issue seems very confusing. The US Constitution was never meant to apply to this bizarre multicultural situation that's been induced.

But why on earth would you want the normal or traditional practice of (radical) Islam in the U. S. , Canada, France, the West generally? I know you don't want that.

The Founders figured something out. They figured out that a modicum of civil peace can be had if government is kept limited in scope and kept separate from religion.

Freedom of religion, like freedom of speech, and like toleration, has limits. As you know, Islam does not recognize freedom of religion. You either convert, accept dhimmitude, or are put to the sword. It is therefore entirely reasonable to place restrictions on freedom of religion and ban politically subversive religions.

A commitment to freedom of religion becomes incoherent and suicidal when it is taken to imply freedom for all religions including those that reject freedom of religion. Similarly for freedom of speech and toleration. A sane toleration must be intolerant of the intolerant.

“No Religious Test”

In Article VI of the U. S. Constitution we read:

. . . no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Does it follow that the U. S. Constitution should be so interpreted as to allow a Muslim citizen who supports sharia (Islamic law) to run for public office? No! For the same Constitution, in its First Amendment, enjoins a salutary separation of church/synagogue/mosque and state, though not in those words. Sharia and the values and principles enshrined in the founding documents are incompatible. On no sane interpretation is our great Constitution a suicide pact.

It is important to realize that Islam is as much an anti-Enlightenment political ideology as it is a religion. Our Enlightenment founders must be rolling around in their graves at the very suggestion that sharia-subscribing Muslims are eligible for the presidency and other public offices.

Many assume that no restriction may be placed on admissible religions for the purposes of the implementation of Article VI. I deny it. A religion that requires the subverting of the U. S. Constitution is not an admissible religion when it comes to applying the "no religious Test" provision. One could argue that on a sane interpretation of the Constitution, Islam, though a religion, is not an admissible religion where an admissible religion is one that does not contain core doctrines which, if implemented, would subvert the Constitution.

Or one might argue that Islam is not a religion at all. Damn near anything can and will be called a religion by somebody. Some say with a straight face that leftism is a religion, others that Communism is a religion. Neither is a religion on any adequate definition of 'religion.' I have heard it said that atheism is a religion. Surely it isn't. Is a heresy of a genuine religion itself a religion? Arguably not. Hillaire Belloc and others have maintained that Islam is a Christian heresy. Or one could argue that Islam, or perhaps radical Islam, is not a religion but a totalitarian political ideology masquerading as a religion. If an X masquerades as a Y, then the X is not a Y. How to define religion is a hotly contested issue in the philosophy of religion.

The point here is that "religious" in ". . . no religious Test shall ever be required" is subject to interpretation. We are under no obligation to give it a latitudinarian reading that allows in a destructive ideology incompatible with our values and principles.

A Modest Proposal: Revise the Second Amendment

John Paul Stevens today in the The New York Times called for the enactment of laws "prohibiting civilian ownership of semiautomatic weapons" and beyond that, as a "more effective and more lasting reform," the repeal of the Second Amendment.

(I wonder if the good justice understands that semi-autos include most handguns owned and carried by Americans today, and that among these pistols there is the low-caliber .22. Does Stevens propose that the existing stock be confiscated? Is he willing to countenance a huge black market?)

Justice Stevens considers the Second Amendment a "relic of the 18th century" with its talk of "a well-regulated militia." Let us assume, arguendo, that he is right and that the Second in its original formulation, and despite District of Columbia v. Heller, does not recognize an individual citizen's right to keep and bear arms.

Well then, a reasonable course would be to strip out the archaic language and bring the Second Amendment up to date. Not repeal simply, but repeal and replace with something better.

How might it go?

Because the right to life entails both the right to self-defense and the right to the appropriate means of self-defense, the right of the people to keep and bear arms shall not be infringed.

My proposal is both modest and reasonable and in keeping with American values and traditions. Not only that, it throws a sizable sop in the direction of those leftists who support a so-called 'living constitution.' Perhaps we ought to update the whole constitution, but not along destructive leftist lines which have little to do with our values and traditions, but along sound, salutary conservative lines.

Does my eminently reasonable proposal have a chance? Of course not. How about Justice Stevens'? I wouldn't put money on it.

What I will do is buy more guns and ammo. And you should too. 'Voting' with one's wallet is much more effective than voting. Fund the Right, defund the Left. Money is what gets people's attention. Money and the power that emanates from the barrel of a gun.

Is Gun Ownership a Constitutionally Protected Right?

It is important to distinguish between rights and constitutionally protected rights. The right to life, for example, is a natural right. Its existence does not depend on anything of a conventional nature such as a constitution. We have the right whether or not it is constitutionally protected. Our great constitution protects our rights; it does not confer them. You can say that our rights come from God, if you like, or you can say they come from Nature. But the main thing for practical purposes is to realize that our rights are logically antecedent to human decisions, compacts, legislation, and the like.

The right to life generates the right to defend one's life and in consequence the right to the means of self defense. The right to the means of self-defense is protected, not conferred, by the Second Amendment to the U. S. Constitution. As I said, that right is logically antecedent to constitutions and such. It follows that the question whether or not said amendment protects an individual citizen's right to keep and bear arms is a question of constitutional interpretation that is strictly secondary to the question of whether the individual citizen has a right to the means of self defense. Of course he does, as I have argued.

Strictly secondary, but still important. Eugene Volokh argues in a short (4:16) Prager U video that the individual citizen's right to keep and bear arms is constitutionally protected.

If destructive leftists were to repeal the Second Amendment then, strictly speaking, a Second Amendment remedy for this outrage would not be available, but a remedy would be available nonetheless, namely, the overthrow of the leftist tyrants. That would of course require guns. Curiously, then, we need guns not only to protect our rightful gun ownership, but also to protect the constitutional protection of this ownership!

We need guns to: protect our property including our guns; protect our lives and liberties from criminals, terrorists, and rogue elements in the government; fruitfully intimidate destructive leftists so as to insure that they behave properly; protect the Constitution including its 2A protection of our gun rights.

Under the rubric 'protect lives and liberties' comes the right to free speech and the right to protect free speech. For that too guns are needed. Leftists are liberty-denying scum and you must never underestimate their capacity for vicious and totalitarian behavior.

Sorry Hillary, It’s Not About Hunting

John Daniel Davidson:

Here it must be said that the Second Amendment was not meant to safeguard the right to hunt deer or shoot clay pigeons, or even protect your home and family from an intruder. The right to bear arms stems from the right of revolution, which is asserted in the Declaration of Independence and forms the basis of America’s social compact. Our republic was forged in revolution, and the American people have always retained the right to overthrow their government if it becomes tyrannical.

[. . .]

That might sound academic or outlandish next to the real-life horror of a school shooting, but the fact remains that we can’t simply wave off the Second Amendment any more than we can wave off the First, or the Fourth, or any of them. They are constitutive elements of the American idea, without which the entire constitutional system would eventually collapse.

The aim of the Left is to subvert the American constitutional order. This explains why leftists never miss an opportunity to attack the Second Amendment which is the concrete back-up to the First and the others. A school shooting is a wonderful opportunity for them to recruit schoolchildren and bleeding-heart know-nothings as useful idiots for their cause.

Bill Clinton’s Impeachment

I heard Representative Jackie Speier (D-California) say on Face the Nation this morning that former U. S. president William Jefferson Clinton "faced impeachment."

Not so. He was impeached. What he faced, but did not suffer, was removal from office.

Impeachment is not the same as removal from office. Impeachment is analogous to indictment in regular court proceedings. The House of Representatives votes to impeach, and then the Senate conducts the trial. Clinton was acquitted of the charges brought against him, perjury and obstruction of justice.

You would expect a member of Congress to know that. But then she's a Dem . . . or maybe she just misspoke.

The trouble with the Democrat Party is that so many of its leading 'lights' are dimwits, Nancy Pelosi heading the list. What gives this airhead such staying power? Answer: a preternatural ability to raise money.

Free Speech: PragerU Sues Google

It is surely an outrage that Google would limit access to PragerU videos on YouTube given their high quality and educational value. So it is good news that Dennis Prager is punching back with a lawsuit:

The lawsuit, filed in federal court in California, details upwards of 50 PragerU educational videos that YouTube has, in PragerU’s view, unjustifiably slapped with “restricted mode” or “demonetization” filters, violating its First Amendment right to free speech.

What is not clear, however, is how the First Amendment comes into this. As I understand the free speech clause of the First Amendment,it protects the citizen against the federal government. "Congress shall make no law . . . abridging the freedom of speech or of the press . . . ."

Google and its subsidiary YouTube, however, are in the private sector.

If I don't allow your comment to appear on my weblog, that is no violation of your First Amendment rights. You have no First Amendment rights here. This is private property. It is the same as if you came into my house spouting leftist drivel. I'd throw you out. Why should I give some macro-aggressive destructive leftist a forum?

Google could argue similarly: why should they give a forum to the 'racist,' 'sexist,' 'homophobic,' etc. views of Dennis Prager and his associates?

Note the difference between Google and Cal Berkeley. If Alan Dershowitz is prevented from speaking there by Antifa thugs, he could argue with some plausibility that since Cal Berkeley is the recipient of federal monies, he does have First Amendment rights there.

But it will take rather more involved legal reasoning for Prager's lawyers to make their case.

There are a number of wickedly difficult issues here.

All the political issues are rooted in philosophical conundra. My metaphilosophy, however, teaches that the problems of philosophy are, all of them, insoluble. Ergo, etc.