Challenging Assumptions

I was recently removed from a Facebook discussion after I challenged a cherished axiom of social/political/theological juncture.  (And no, it wasn’t about immigration.) I have also noticed that when I blog about anything that hints at scrutinizing accepted talking points, the traffic drops to nothing. People don’t even read just to say, “What an idiot.” When I want hits, I write sentimental schmaltz. Critical thinking is not a particularly popular pastime.

So what sorts of challenges are unwelcome? How about the one that most recently made me persona non grata.

Ever since Engel v. Vitale was decided by the US Supreme Court in 1962, prayer has become increasingly banned in public schools. What began as a ban on school-sponsored prayer during educational time eventually led to the decision in Santa Fe Independent School Dist. v. Doe (2000), that student-led, student-initiated prayer at high school football games violates the Establishment Clause.  By extension this covers any student-led student initiated prayer at any school function.

Because Engel is a flawed example of judicial activism, it is bad. If prayer was constitutional for 171 years, it doesn’t suddenly become unconstitutional. This is just like the three-prong test of Lemon v. Kurtzman (1971) that sets out the requirements of any legislation that touches upon religion. If three prongs weren’t necessary before 1971, they don’t somehow become necessary afterwards. Any cases based on Engel and Lemon (like Santa Fe ISD) are, ipso facto, flawed.

To this point, I no doubt have my cheering section of politically active, conservative Christians behind me. This is, after all, pretty standard Strict Constructionist, Original Intent stuff. However, I think there is a need to re-evaluate, not the legal arguments, but the moral arguments that have become a popular extension from them.

As I mentioned above, I had my comments removed from a Facebook thread. This happened after I challenged the following statement: “Morals declined when we took prayer and God out of school.” (Being removed from a discussion is nothing new to me. I’ve even been thrown out of an entire conservative Facebook group for holding a minority opinion on an issue.)  This proposition has become as much a part of the warp and woof of Christian conservativism as the legal analysis of Engel and its progeny. How dare I question the unquestionable. Yet that is exactly what I do.

I do this for two reasons. First, and most simply, because the truth matters. Second, and perhaps more controversially, because, as I addressed in another instance on this blog less than a year ago, conservative Christians have succumbed to sloppy scholarship.

I do this from two sources of evidence. First, it is worth examining school-sponsored prayer in state education outside of the United States. Second, there is the issue of the historical record and proximate cause.

I bring to this discussion seven years of experience as a teacher in the state schools in England and Wales. As recently as 1998, it was statutorily re-affirmed that in state schools all pupils must take part in a daily act of collective worship unless their parent has requested a waiver. The acts of collective worship must be “wholly or mainly of a broadly Christian character.” Not only that, but children are also required to attended Religious Education lessons throughout the entire course of their compulsory education. The majority of these RE lessons must also be based on Christianity.

With that experience, and over a decade of living in conservative rural England, I can assure you that the continuation of prayer and even of Christian education in state schools has done nothing to slow the decline of morals, of the young or the not-so-young, in the United Kingdom. Robert Bork once wrote that America is slouching toward Gomorrah. If the United Kingdom sought to pursue the moral standards of Gomorrah and its sister city Sodom, it would be an upward move. These two ancient conurbations of sin are veritable Cities Set Upon Hills compared to the morality of Sceptred Isle.

But what of the possibility of an actual causal link between Engel and moral decline? This raises a couple of related questions. First, did the removal of the content have an effect? What was the nature of that content in 1962?

We first have to recognize that in 1962, prayer in school wasn’t particularly widespread across the United States. It was actually at its peak in the 1920s, though it had been ruled out in quite a few states before or shortly after the turn of the 20th century. Along with mandatory Bible reading, it was the subject of considerable litigation in the state courts, sometimes upheld and sometime overturned, based on state constitutions.

Even though it was patchy across the US, what was the content of prayer in schools in 1962? Let’s look at the prayer that was ruled unconstitutional in Engel. In New York, the following prayer had to be recited by a school official each day: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country.” After Engel, that one sentence was no longer recited publicly at some point during the day. It that enough to send the nation into a moral tailspin?

I cannot count how many examples I’ve seen of charts, graphs, and tables marking the decline in morality since the Engel decision. The interesting thing is that they don’t chart back before 1962 to indicate trends already in the making and unchanged by Engel or its progeny. And of course they don’t demonstrate a direct causal link between the removal of a one-line prayer and the rise in violent crime, sexual promiscuity, music piracy, or whichever evil they are attempting to emphasize. Generally they are based upon the self-evident statement that such evils are what happens when God is removed from public schools. A little circular reasoning goes a long way.

I will finish by going to the heart of the matter. Did “we” (through Supreme Court justices appointed by three different Presidents before almost all of us were born) take prayer or God out of schools? I know I prayed in school long after Engel, which was decided two years before I was born.  Prayer is, after all, talking to God. And can anyone remove God from a school or any place else? On the other hand, how many kids were actually praying when a teacher or principal recited “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country”? Or was it form over substance?  Can the acts of Supreme Court justices confer collective responsibility upon anyone, not to mention lives not yet in being?

In the UK, God is mentioned everywhere in school and He gets his own lessons, yet almost no one acknowledges Him. In the US, He is not officially mentioned and churches (other than liberal Protestant denominations) continue to grow. He is more openly acknowledged in the media and in politics than in 1962. There are more open visible followers of Jesus amongst young people in America than ever before. In trying to make a connection between the virtually symbolic act of removing prayer from schools and the abundance of sin, there has been ignorance of the fact that grace has much more abounded.

Would it be nice if we returned to the practice of a content-free, one sentence, ecumenical prayer in public schools each day? Perhaps. Is it going to stem the dishonesty, violence, fornication, or whatever other ills we identify in our young people or in our society? No. That takes real prayer. That takes changed hearts and changed lives.

More Than Willing (for Someone Else) to Pay the Price of Security

Now that the 112th Congress is in session, immigration reform will be off the table. Not immigration, just immigration reform. The sole focus will be on border security. So what does “border security” mean?

For a number of people with whom I have discussed the matter, it really isn’t that complicated. You put enough troops on the Mexican border to stop every person trying to cross illegally. If they don’t stop, you shoot them. Can’t find them? Put up more of those satellites that can read license plates from space. What’s so difficult about that?

Now, you may think I was having these discussions with Joe Sixpack from Wal-mart (or peopleofwalmart.com, perhaps). Actually I was having them with evangelical pastors and pastors’ wives. People who generally go out of their way to share the love of Jesus.

One of these pastors said if illegals are interdicted and attempt to evade arrest rather than be taken into custody, you simply have to apply the rule that it is justified to shoot fleeing criminals and you gun them down in the desert. I have to say he had to slightly rethink his position when I mentioned that many of these “invaders” are women and children. Do you shoot the women and children in the back as well?

His revised view was that you don’t shoot the women and children. Just the men. Or at least the ones that look like men. Tall boys and women with short hair might get it, too, but that was just too bad. After all, if you kill the men, the women and children will probably give themselves up.

Of course the little legal problem with this (I would bring that up – which is no doubt one of the reasons that people want to kill lawyers, too, regardless of citizenship or immigration status) is that the gun ’em down rule is a fleeing felon rule. Entering the United States without inspection is not a felony. In fact, it is not even a crime. It is a civil matter.

As you might guess, I’ve already been offered the answer to that: Make it a criminal matter – and a felony at that. Then we can shoot ’em. The only problem is that when they get captured, they are entitled to all sorts of rights under the Constitution. If we do that, we can’t shuffle these people with no money through a deportation hearing system in which they have no right to public defense. ICE are already upset with the judge who said mentally retarded deportees should be given lawyers. If everyone gets a lawyer, they might find out that ICE are deporting a lot more people who have a right to be in the country than we already know about.

It wouldn’t be fair not to give the other argument. It is easy to get around this whole problem with providing lawyers. If we shoot them in the desert, who will know that they weren’t fleeing? The economic security of the United States is at stake. Sometime we just have to do what we have to do to make sure Americans have jobs and no one gets welfare benefits to which they are not entitled. I know some of you think I’m employing sarcasm, or at least hyperbole. (I am given to that at times, I admit.) I wish.

I have honestly asked good conservative evangelical Christian folks whether it worth killing someone made in the image of God? I have honestly been told – as point blank as they would like American troops on American soil to use their weapons – yes, it is. What if they are fleeing the Zetas or the Gulf Cartel and certain death in a war zone far more dangerous that either Iraq or Afghanistan? Too bad. What if they are Christians? They better pray for God to protect them – on their side of the border, of course. If they are good Christians, then they will obey they laws of our land and not enter it without permission. (Honestly, I couldn’t make this stuff up.) At least if they get killed, they will go to heaven. God can afford to take them in – America can’t.

And what about those spy satellites that we can use? If the government build enough of them that we can constantly monitor a 2000-mile border at the magnification to see individual brown faces, we can trust the government to just use this surveillance technology for good, can’t we?  The Executive branch always operates within the law and with the consent of Congress and would never hurt us. We are citizens, after all. They already monitor the internet to make sure no one says something wrong and we’re not worried about that, are we? And they keep us safe with all those body checks in the airports. (They can only get more invasive with those, but that’s the price of freedom, and it’s for our own good.)

And if your neck (or at least your state) is red enough, you may find yourself nodding in agreement with my friends. But maybe you will pause for just one moment and think: we have we become? Are these really conservative values? Are these really Christian values?

The Greatest Entitlement

Americans, for the most part, do not like the idea of someone getting something for nothing. You want something, you pay for it. We conservatives especially cringe at the idea of entitlements.

Except for citizenship. For most Americans, the best citizenship is free citizenship. Sure, we are happy to let a few selected customers pay for a second-class version of it, but for the vast majority, it is something that neither has to be earned nor purchased.

Those few who pay for it also have to prove they deserve it. They have to spend a lot of money and go through a complicated process just to prove they should be allowed to even get the chance to earn it. Once that hurdle it overcome, they have to contribute to the economy for a specified period of time during which they can be thrown out of the country at the caprice of a judge or a legislature. They have to pass an exam to show that they know enough to become a real American. They have to pay another considerable amount of money to the Government, in addition to anything they pay to a lawyer to help them find their way through the maze of naturalization.

Wouldn’t it be the real American way to make everyone pay for it? Why not make the right to vote contingent on passing an exam and paying a $680 fee? Why should people get this for nothing just because they happened to be born in the US or have parents who happened to be born American? After all, many of these people have not contributed anything to the economy and for some even their parents have contributed nothing.

If we are going to deny millions of willing, working people the opportunity to even pay their way to citizenship then it only seems right that those who are not assets to the country should not be deciding its future as an entitlement of the accident of birth.

Why We Can’t Afford to Outlaw Abortion

In these difficult times, when we are trying to get public spending under control and balance state and federal budgets, in addition to keeping the economy going, it’s a good thing we have legal abortion. Maintaining the access to abortion is the only fiscally responsible thing to do. It’s the truly conservative approach. The evidence is so overwhelming, I’m sure you will have to agree with me.

First, abortion is an industry. We need all the industry we can get. It keeps lots of people employed. In 2005, there were 1,787 abortion providers in the US. Each one of those equals a group of doctors and nurses, orderlies, receptionists, clerks and office cleaners. You know, people with jobs who then pay taxes and buy things from other businesses that pay taxes, and so on. I can’t get figures for the size of the whole abortion industry, but just Planned Parenthood generates revenue of over $1 billion each year. After paying all of its expenses, including all of those salaries and supporting the pharmaceutical and medical supply industries, it runs a net profit of between 8% and 10%.

But second, and more importantly, we have to look at the cost of all of the children who wouldn’t be aborted. There are about 1.2 million abortions performed in the US each year. That number does not include the morning-after pill, because there’s no way of telling how many abortions that has induced. If you just add that there is a lot more than 1.2 million, you’ll have the picture, but we’ll use the lower number for illustrative purposes.

If there were 1.2 million more babies each year, that would mean 1.2 million more children in each grade in our public schools. Schools are generally funded by property taxes, which these addition children would not be generating. The tax base would stay the same, while the numbers of pupils wouldn’t. Spread across grade K-12, that’s 15.6 million additional students.

But it doesn’t stop there. If all of those 12th graders then go to college, that’s an additional 1.2 million college students each year, mostly going to state colleges and universities. Most of those will go to colleges and universities in their home states. You know what that means: in-state tuition subsidized by state budgets. That would place an unreasonable burden on taxpayers. It also means that they will be taking the places of students who were going to be born anyway and should be entitled to those places and the financial aid that goes with them. Is that fair to the wanted children of our states?

It gets worse. Those who would have been aborted will be competing for jobs with those who were wanted, both amongst their peers and those already in the workplace. They will be putting wanted people out of work – people who are entitled to those jobs by birth.

We then have to consider the overall political impact. The only reasons a political party would oppose abortion would be to have those who are not aborted vote for them. An additional 1.2 million eligible voters each year will reduce the voting power of those who already have the right to vote. This could change the outcome of elections.

No, clearly we have to support those who are rightfully born and wanted. It’s the responsible thing to do.

If you can’t see my point, all I can say is that you clearly have not read enough Jonathan Swift.

Talkin’ ‘Bout a Revolution

First it was the Tea Party and now it is the Revolution.  Apparently that is the new thing. I’ve been told by more than one person that they are preparing for the next Revolution and I’ve started to see it all around the conservative blogosphere. I used to be the firebrand around here. Now I’ve turned into the voice of reason.

Apparently Obama has gone too far and Revolution is the answer. It’s all leading to armed uprising. So go ahead and have your revolution.  The biggest problem I see is figuring out what to revolt against and what to put in its place. I’m afraid this is where it’s all gonna fall apart.

Some people are mad at Obama. I’ve heard people say they think he’s on the verge of becoming a military dictator. Some people think it is whole “Ruling Elite” of both parties. Regardless of elections and even changes in party power on Capitol Hill, the same machinery of government rolls along, so apparently they will all have to be throw out by force.

But no one seem to know who’s gonna do the throwing, from whence they will derive the authority to do the throwing, where they’re gonna throw them, and what they are going to put in their place.

There have been two American revolutions. One succeeded and one failed. However, both had something in common. They had recognisable governments already in place.

In 1775, there were established, properly elected colonial governments. A year before the first shots were fired, these colonial governments had already sent delegates to the First Continental Congress.  In 1861, there were properly elected state governments.

In the first American revolution, the colonists had no forum of redress for their grievances against the central government. They were able to change the form of government from monarchy to republic. Have the new revolutionists come up with a new form of government they think works better? That would seem incompatible with extolling the virtues of the US Constitution, which they all seem to do. Nonetheless, the mechanisms within that Constitution to change the government, left virtually unchanged other than the direct election of senators, do not seem to satisfy. And I don’t hear anyone clamoring for revolution over dissatisfaction with the 17th Amendment.

The Second American revolution, that war between the states known to most of my ancestors as the War of Northern Aggression, was fought after a nation was divided by different political views and one side felt helpless as the deck had been stacked against them.  The new President didn’t openly threaten to change the entire structure of the economy and the society, but there was a lot about his background that made them gravely suspicious. This is probably a better model for predicting the outcome of any future conflict.

The citizenry of the South were well-armed and morally outraged. All my friends with AR-15s will tell you that this is why they have their assault rifles and boxes of ammo. To defend themselves against the government.  The thing is, weapons have moved on a bit since 1861.

Now let’s say this Third American revolution is so organized as to have entire states willing to secede. And let’s say that the governors of those states were able to maintain control of all the resources available to them in the National Guard and State Guard units. If so, they would have some proper military weapons, including some aircraft. Now there’s your revolution. The thing is, though, they would be so far outmatched by the regular US military forces that comparisons to the Recent Unpleasantness wouldn’t hold up. There’s not a single red state that has an aircraft carrier.

But let’s say we go ahead have a civil war. At the time of the last one, the population of the United States was about 31 million. Today is it roughly ten times that. The number of deaths is generally estimated at about 620,000. It would be nice if it were just a matter of multiplying by 10 and saying a new civil war would result in 6.2 million deaths. However, modern wars are much better at adding collateral damages. You know, civilian deaths. But let’s say we keep those to a minimum. Let’s keep the total deaths at 10 million.

Surely this is a small price to pay for an insurrection against a President and Congress that refuse to stop all the illegal immigrants from coming in and won’t catch and send back all the ones already here.  If you consider that he’s also put us on the road to European-style health care, you’d be willing to sacrifice a few sons – and considering the collateral damage, wives and daughters – for the cause, wouldn’t you? The constant fear of bombardment and food rationing would only be for a few years at most.

There are, after all, some people who have gotten innoculations at the free clinic when they weren’t entitled to do so, and maybe even some food stamps. And some of them haven’t learned English. If we give up the lives of a substantial part of the 18- to 30-year-old men in combat and a few million non-combatant men, women and children, there won’t be any illegals working on construction sites, cleaning houses or mowing grass. That’ll show ’em.

And one thing’s for sure: during this new American revolution, it will be much more dangerous north of the Mexican border than south of it. It will be safer for these dastardly immigrants to put up with the drug cartels. They won’t want to be sneaking into a country torn apart by war. Not only that, but since the federal government won’t be there to protect them, anybody that doesn’t like them will probably be able to kill them with impunity. There’s the motivation they need to leave Arizona.

Luke 14:28-32

What the Arizona Court Order Actually Says

There seems to be some confusion about the prelimiary injunction ordered by U.S. District Judge Susan Bolton with regard to Arizona Senate Bill 1070. Reading both the press and the blogs, there are misunderstandings, misconstructions, oversimplifications, and lots of rhetoric, especially wondering how the judge could rule this way when (they presume) the Arizona law mimics federal law. I have read the court order and this is my legal – not political – analysis:

The judge started off by explaning which provisions of the statute are being enjoined from enforcement and which are not. Almost all of the statute stands and is enforceable pending trial on the merits. Four narrow provisions are temporarily enjoined. She concludes this section by stating the legal basis of the injunction, viz., that the moving party is likely to succeed on the merits with regard to those provisions when the case is tried and the moving party would suffer irreparable harm if the court does not provide preliminary relief, as well as the tests of the balance of equities and public interest. This is the same standard used in any case.

In the next section, the judge provides a good overview of federal immigration law that is worthy of reading by a lot of people here and on other blogs who seemed to be confused by it. There is a good overview of the relevant portions of SB 1070.

The judge then gives a good explanation of why she cannot and will not enjoin all of SB 1070 as the Government moved.

Addressing each provision, she starts with Section 2(B), which does not mimic any federal law, but says that if someone who is stopped, detained, or arrested is suspected of being an unauthorized alien they have to have their immigration status determined before they are released. This places a substantial burden on both citizens and lawful aliens (citing Hines v. Davidowitz), as well as a burden on federal resources (citing Buckman Co. v. Plaintiffs’ Legal Comm.) forcing reallocation of resources from higher priorities directly related to national security. The judge then footnoted the possible 4th Amendment issues, but did not use them as the basis of her ruling.

With regard to Section 3, this also does not mimic federal law, but rather creates a separate state offense with state penalties for violating a federal law. This runs contrary to Hines in several ways as clearly set out. Not really a shocker. Preemption is pretty obvious and success at trial very likely.

With regard to their Section 4 challenge, the Government is not likely to succeed, because they are seeking to enjoin a section of the statute that was amended by Section 4 of SB 1070 but not the actual change brought about by Section 4. No injunction.

The injunction with regard to Section 5 involves the portion that criminalizes unauthorized aliens who attempt to get work or actually work. Again, this does not mimic federal law. Congress specifically did not impose criminal or civil penalties on employees when it chose to do so on employers. The judge ruled that because the Arizona statute conflicts with a comprehensive federal scheme, it is preempted.

The Government attempted two further injunctions with regard to Section 5 but did not succeed.

Section 6 of SB 1070 does not mimic federal law and provides that an officer may arrest a person without a warrant if the officer has probable cause to believe that “the person to be arrested has committed any public offense that makes the person removable from the United States.” This would include any offense that might have been committed at any time outside of Arizona. The judge cites Justice Alito in Padilla v. Kentucky:

providing advice on whether a conviction for a particular offense will make an alien removable is often quite complex. “Most crimes affecting immigration status are not specifically mentioned by the [Immigration and Nationality Act (INA)], but instead fall under a broad category of crimes such as crimes involving moral turpitude or aggravated felonies.” M. Garcia & L. Eig, CRS Report for Congress, Immigration Consequences of Criminal Activity (Sept. 20, 2006) (summary) (emphasis in original). As has been widely acknowledged, determining whether a particular crime is an “aggravated felony” or a “crime involving moral turpitude [(CIMT)]” is not an easy task.

As a result or this and the fact that it would also require Arizona officers to make judgments with regard to non-Arizona statutes, Judge Bolton ruled:

Considering the substantial complexity in determining whether a particular public offense makes an alien removable from the United States and the fact that this determination is ultimately made by federal judges, there is a substantial likelihood that officers will wrongfully arrest legal resident aliens under the new A.R.S. § 13-3883(A)(5). By enforcing this statute, Arizona would impose a “distinct, unusual and extraordinary” burden on legal resident aliens that only the federal government has the authority to impose. Hines, 312 U.S. at 65-66.

The judge concluded her order with a detailed explanation of how the provisions she enjoined meet the standards for injunctive relief. This is set out in a clear and reasonable way.

Judge Bolton’s ruling may not be popular, especially in Arizona. That is part of the separation of powers. It is not a judge’s job to do the popular thing. That is why federal judges are not elected. The rule of law and the current will of the people may not be the same thing.  Judge Bolton did not rule in any activist way. She did not bend to the will of the Obama Administration.

If you wish to substantively disagree with my legal analysis, or make other substantive comments, feel free to do so.

A Matter of Sovereignty

Let me say up front that I agree with David Cameron: Abdelbaset Ali Mohamed Al Megrahi should not have been released from prison. I think he was a fall guy for what was a Libyan government planned and executed operation, but he was convicted and barring a successful appeal, he should have stayed in prison.  However, I think the U.S. Senate is way out of line in investigating his release.

This goes back to my most recent post: it is consistently the view of the US government – at least of the Executive and Legislative branches – that the sovereignty of other countries is always secondary to American interests. The Senate has invited Scottish Justice Minister Kenny MacAskill, Scottish prison health director Andrew Fraser, former UK Justice Secretary Jack Straw, and former Prime Minister Tony Blair to appear before it to answer questions as to how and why Megrahi was released from prison on compassionate ground. (This despite the fact that Blair had been out of office for nearly two years at the time of the release.)

Though I have no political affinity to any of the Brits invited, I have to agree with the assessment of Jack Straw:

“It is, in my experience, highly unusual for the legislature of one sovereign state to conduct an inquiry into decisions of another sovereign state, including, as in this case, decisions by a devolved administration on the release of a prisoner. There are therefore important issues of principle here which could affect UK governments of any party, and which will need carefully to be considered before I come to a final view.”

In other words, it is none of their business. The crime occurred over Scottish airspace. Even if the bomb was put on the plane somewhere else, at no time in question was the plane in the United States or its airspace. Neither was it even in international airspace, as the death of 11 Scots killed on the ground in Lockerbie made clear. Scotland had jurisdiction then and it has jurisdiction now. It may come as a shock to a lot of Americans, but killing Americans somewhere in the world does not give the government of the United States jurisdiction over that place or the power to investigate their killing. If Americans leave the sovereign territory of the United States, they assume the risk that they may come to harm without the US Government having the right to vindicate their cause.

Perhaps it is David Cameron’s admission that the UK is the junior partner in the Special Relationship both now and for at least the past 70 years that has emboldened the Senate Foreign Relations Committee to think its senior status carries some sort of weight.

Even if, as has been strongly insinuated by New Jersey Senator Robert Menendez, BP lobbied – or even, as has been suggested – bribed UK or Scottish officials or ministers, it is not the business of the US Senate. That is true even though BP is responsible for that terrible oil spill in the Gulf of Mexico and apparently needs to be punished further, whatever excuse can be found. If there has been impropriety, it is for the UK government to investigate.

Let’s put the shoe on the other foot, since 67 British people died as a result of the 9/11 attacks. Mohammed al-Qahtani, the alleged 20th hijacker, has been tortured and charges against him have been dropped, re-instated, and dropped again.  Should the British Government open an inquiry and invite US officials to appear before it to answer for how they have dealt with it? Should British parliamentarians and ministers be demanding explanantions? If the American public learned of such an inquiry – that is, if the American press even took it seriously enough to report it – the public would be everything from bemused to outraged that another country would think it had jurisdiction to demand American officials explain themselves.

Sovereignty is sovereignty. It’s time the US respected the sovereignty of other nations to the extent it demands respect for its own.