The Logic of the ACLU

[ThatRobGuy]

You may not agree with this interpretation of the first and fourteenth amendments. A lot of neocons don't. But, to say that the text of the constitution clearly contradicts it is not something that can be asserted with any level of intellectual honesty.

Implying that something is in the constitution when it's not is a clear contradiction. I hate to use a slippery slope argument, but the constitution is what protects our freedoms, as soon as you allow someone to "interprate" things into it that aren't there, that's a dangerous path and keep in mind that could go both ways.

We've already seen that with other amendments being subject to "interpretation". Look at how our 4th amendment was violated under the Bush administration with the Patriot act.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Yet, due to Bush administration using interpretation rather than just reading what it says, they had the right (or claimed they had) to pop in when ever they'd like to search your place and keep your computers, files, and firearms and subject you to 24-hour monitoring as long as they like. Not to mention keeping you without a speedy trial on the grounds that you "might" be a terrorist.

So one act of interpretation stomped over 2 of our constitutional protections. I know it sounds tempting to allow it when an interpretation happens to fall in line with something you happen to agree with, but as I said before, it can go both ways and come back to bite us in the rear end.

That's why it's so important to handle these things through proper channels. If there's a problem that needs to be fixed at the constitutional level, then we need to get an amendment created that states exactly that purpose and not try to re-use other amendments that were created for a different purpose.

 

[acropolis]

All texts require interpretation.

 

[dies-l]

Implying that something is in the constitution when it's not is a clear contradiction.

Except I have already demonstrated how the EC can be reasonably interpreted to apply to local government.

You acknowledged that you accept the Incorporation Doctrine, and that you would agree that, because of the 14th Amendment, the EC applies to state legislatures as well as the Federal legislature. You acknowledged that local government is a creation and extension of State government (and I think you would acknowledge that local government is a product of the state legislature). Therefore, as a practical matter, anything that local government does with its power as local government is an extension of state legislature. So, to say that the EC applies to local government does not "imply something is in the Constitution when its not." It is acknowledging a reality that local government is subject to the same constitutional requirements as the State government from which it derives its authority.

Now, there is a separate question, which we haven't gotten to yet, because you continue to insist that local government is in no way subject to the EC. That issue is whether certain acts are in fact violations of the EC. And, I will acknowledge that on this issue, I will openly disagree with some of the positions that the ACLU has taken. I believe that there is a balance that needs to be reached between preventing government establishment of religion and protecting the free exercise rights of those who happen to be employed by government. But, when you accuse the other side of just making things up, when they logically apply constitutional principles, we can't even get to this point of this discussion.

 

[ThatRobGuy]

Except I have already demonstrated how the EC can be reasonably interpreted to apply to local government.

Why operate off of debatable interpretations when there are clear means to amend it and make it say exactly what needs to be said?

You acknowledged that you accept the Incorporation Doctrine, and that you would agree that, because of the 14th Amendment, the EC applies to state legislatures as well as the Federal legislature. You acknowledged that local government is a creation and extension of State government (and I think you would acknowledge that local government is a product of the state legislature). Therefore, as a practical matter, anything that local government does with its power as local government is an extension of state legislature.

I acknowledge that it applies to federal and state legislature because that's what the document says.

Where I think your point is up for debate is there are a lot of things that the local government does with it's power like create a local department of sanitation...does that mean that if the guy standing on the back of the garbage truck starts yelling "I love Jesus" at the top of his lungs as the truck goes by that it's a violation of the incorporation doctrine because he's employed by the local government and they're issued their power from the state? Obviously this is a silly example, but if we allow things to operate off of interpretation rather than exact text, someone could potentially try to enforce this.

Now, there is a separate question, which we haven't gotten to yet, because you continue to insist that local government is in no way subject to the EC. That issue is whether certain acts are in fact violations of the EC. And, I will acknowledge that on this issue, I will openly disagree with some of the positions that the ACLU has taken. I believe that there is a balance that needs to be reached between preventing government establishment of religion and protecting the free exercise rights of those who happen to be employed by government. But, when you accuse the other side of just making things up, when they logically apply constitutional principles, we can't even get to this point of this discussion.

If you'd like to switch gears and talk about some other debate points, I'm okay with it. It's an open forum.

 

[dies-l]

Why operate off of debatable interpretations when there are clear means to amend it and make it say exactly what needs to be said?

All interpretations are debatable and all texts need to be interpreted. No matter how you wrote up the amendment, there would be debatable issues to be sorted out. Amending the Constitution every time there is a reasonable debate as to the meaning of an existing clause is both futile and reckless.

I acknowledge that it applies to federal and state legislature because that's what the document says.

No, that is a common and very reasonable interpretation of what it says. But, you will not find the words "it applies to federal and state legislature" anywhere in the document.

Where I think your point is up for debate is there are a lot of things that the local government does with it's power like create a local department of sanitation...does that mean that if the guy standing on the back of the garbage truck starts yelling "I love Jesus" at the top of his lungs as the truck goes by that it's a violation of the incorporation doctrine because he's employed by the local government and they're issued their power from the state? Obviously this is a silly example, but if we allow things to operate off of interpretation rather than exact text, someone could potentially try to enforce this.



If you'd like to switch gears and talk about some other debate points, I'm okay with it. It's an open forum.

I'm confused. You accuse me of changing the topic. But, the above first paragraph is exactly what I was talking about when you accused me of trying to change the topic. The problem is that you are engaging in the mistake that is common among fundamentalists and other radicals of interpreting a document and then insisting that your interpretation is what the text clearly says and that the document should not be interpreted.

 

[ThatRobGuy]

I'm confused. You accuse me of changing the topic. But, the above first paragraph is exactly what I was talking about when you accused me of trying to change the topic. The problem is that you are engaging in the mistake that is common among fundamentalists and other radicals of interpreting a document and then insisting that your interpretation is what the text clearly says and that the document should not be interpreted.

Actually, I wasn't trying to make an accusation. You mentioned this in your prior post:

I believe that there is a balance that needs to be reached between preventing government establishment of religion and protecting the free exercise rights of those who happen to be employed by government. But, when you accuse the other side of just making things up, when they logically apply constitutional principles, we can't even get to this point of this discussion.

I was under the impression that you had some other points you wanted to discuss and that's why I said "If you want to switch gears...". It wasn't intended to be an accusation, sorry if I didn't convey that well in my post. I was just simply saying that if you wanted to discuss your idea of a balance between the two, feel free to do so. Again, I apologize if my post gave off the wrong vibe.

No, that is a common and very reasonable interpretation of what it says. But, you will not find the words "it applies to federal and state legislature" anywhere in the document.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

How does my view have anything to do with interpretation? I've said that congress isn't allowed to pass any laws favoring a religion. I've also said that due to the 14th amendment, states aren't allowed to override that (IE: abridge the previleges or immunities granted to the citizens in the 1st amendment).

I'm taking the text 100% literally. It's when the assumption is made that "oh, this must mean local as well" that we start crossing into the territory of interpretation.

All interpretations are debatable and all texts need to be interpreted. No matter how you wrote up the amendment, there would be debatable issues to be sorted out.

I'm not sure what you mean? If I were to make an amendment that stated:

"No city, state, federal, or educational personel is allowed engage in any type of religious showing (visual, verbal, symbolic, idealogical) on federal, state, educational, or city property or while serving in their capacity as a city, state, educational or federal employee"

...wouldn't that accomplish what the ACLU is after without having to rely on interpretation?

I agree with you that all interpretations are debatable and that's why I'm proposing that we go back to taking the constitution at face value rather than every special interest group misusing it with their interpretations.

Amending the Constitution every time there is a reasonable debate as to the meaning of an existing clause is both futile and reckless.

I don't see how that's the case, when the constitution itself states that it's the proper protocol when grievences need to be addressed.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes

The way you worded it makes it sound like this would happen all of the time and you fear that it would be used for futile cases, and I can respect your opinion on that, I obviously wouldn't advise doing it 5 times a month.

When Bush tried to get an amendment created to state that marriage was between a man and a woman only, I said "no, that's a stupid reason to try to amend our constitution, that's not what it's for". So for cases like that, yes that would be an example of a futile reason to try it.

But for this particular case, it's not futile. It's a genuine case. A huge debate, pertaining to the bill of rights, that's been going on for over 40 years is far from futile. It's something that needs to be addressed and all I'm proposing is that we use the constitutional provision that was intended for this very type of scenario. Letting something drag out for 40 years and letting 9 people (in a revolving position) make the decision for the entire population is far more reckless in my opinion. It just keeps this whole thing as a never-ending debate. As soon as the justices change, the rules could change again and we end up on this legal seesaw where nobody ever gets closure.

 

[dies-l]

How does my view have anything to do with interpretation? I've said that congress isn't allowed to pass any laws favoring a religion. I've also said that due to the 14th amendment, states aren't allowed to override that (IE: abridge the previleges or immunities granted to the citizens in the 1st amendment).

I'm taking the text 100% literally. It's when the assumption is made that "oh, this must mean local as well" that we start crossing into the territory of interpretation.

You just took "Congress shall make no law respecting an establishment of religion" combined it with " No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" and ended up with "congress isn't allowed to pass any laws favoring a religion [and] states aren't allowed to override that". I would agree with this interpretation, but if you cannot or will not see how that is an interpretation, then I am not sure how to have a reasoned discussion with you. You take a set of principles and state them in a different way in an attempt to apply them to a unique situation. This is what interpretation is.

The issue is not whether or not we should interpret the Constitution. The issue is which interpretation of a given provision of the Constitution is most consistent with the text and its meaning as reasonably understood.

"No city, state, federal, or educational personel is allowed engage in any type of religious showing (visual, verbal, symbolic, idealogical) on federal, state, educational, or city property or while serving in their capacity as a city, state, educational or federal employee"

Even this provision would raise interpretation issues. What is religious? Is an historically objective picture of Jesus religious? Is a "religious showing" one that includes a wide array of both secular and religious icons as provided by members of the community? Under the proposed amendment is a DHS worker who has an Ichthus on her personal vehicle which she occasionally uses for DHS purposes in violation of the Constitution? (Almost certainly yes, but this goes to show how absurdly such specific language might be applied). The point is that, in making the language more precise, you will have left a certain amount of ambiguity AND you would have taken away the court's ability to apply basic principles of reasonableness, which is a touchstone of our legal system.

...wouldn't that accomplish what the ACLU is after without having to rely on interpretation?

Nope.

I agree with you that all interpretations are debatable and that's why I'm proposing that we go back to taking the constitution at face value rather than every special interest group misusing it with their interpretations.

This could be more accurately stated, "I agree with you that all interpretations are debatable and that's why I'm proposing that we go back to [using my interpretation] rathar than every special interest group misusing it with their interpretations."

 

[ThatRobGuy]

You just took "Congress shall make no law respecting an establishment of religion" combined it with " No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" and ended up with "congress isn't allowed to pass any laws favoring a religion [and] states aren't allowed to override that".

And how is that not what the text is saying?

I've stated several times in this thread that only congress is forced to adhere to this policy. The bill of rights provides the immunities and the 14th amendment says the states cannot abridge that.

Unless you're implying that I'm making an interpretation by using the word lessen instead of abridge and using make instead of pass?
Sorry, I'll make sure to use exact verbiage next time so it matches the lingo our founding fathers used back in the day...

It feels like you're maybe splitting hairs when it comes to verbiage just so you can attempt to prove a point that I'm making the same types of interpretations as the ACLU.

If someone makes the statment
"Pizza tastes great"

..and you're referencing it, there's a big difference between saying:
"Pizza tastes awesome"
vs.
"Nobody should eat anything but Pizza"

The first is just using a common expression that has an identical meaning, the second would be an interpretation.

Even though the wording isn't exactly the same, in no way could you lump those two statments in the same category.

This could be more accurately stated, "I agree with you that all interpretations are debatable and that's why I'm proposing that we go back to [using my interpretation] rathar than every special interest group misusing it with their interpretations."

Again, lets throw all interpretations out, and just adhere to exactly what it says, we'll throw out your, the ACLU's, and my interpretation and just operate off of taking it 100% literally.

We'll take the constitution as literally as we'd take a statment like "The car is red".

 

[dies-l]

And how is that not what the text is saying?

I've stated several times in this thread that only congress is forced to adhere to this policy. The bill of rights provides the immunities and the 14th amendment says the states cannot abridge that.

Unless you're implying that I'm making an interpretation by using the word lessen instead of abridge and using make instead of pass?
Sorry, I'll make sure to use exact verbiage next time so it matches the lingo our founding fathers used back in the day...

It feels like you're maybe splitting hairs when it comes to verbiage just so you can attempt to prove a point that I'm making the same types of interpretations as the ACLU.

If someone makes the statment
"Pizza tastes great"

..and you're referencing it, there's a big difference between saying:
"Pizza tastes awesome"
vs.
"Nobody should eat anything but Pizza"

The first is just using a common expression that has an identical meaning, the second would be an interpretation.

Even though the wording isn't exactly the same, in no way could you lump those two statments in the same category.

Again, lets throw all interpretations out, and just adhere to exactly what it says, we'll throw out your, the ACLU's, and my interpretation and just operate off of taking it 100% literally.

We'll take the constitution as literally as we'd take a statment like "The car is red".

Interpretation is the process by which we glean meaning from and provide application of a written, spoken, or nonverbal message. It is not bad or inappropriate; it is vital to effective communication. I don't know what is so difficult to understand about that.

 

[ThatRobGuy]

Interpretation is the process by which we glean meaning from and provide application of a written, spoken, or nonverbal message. It is not bad or inappropriate; it is vital to effective communication. I don't know what is so difficult to understand about that.

If "we the people" got to be in charge of those interpretations, you might be able to talk me into it. But we have 9 people (each with their own agenda) in charge of this process when it comes to the constitution.

In cases where freedoms may or may not be getting infringed I think there have to be definitive "because the law says so" kinds of laws.

As I mentioned before, I like to use what Bush & Cheney did with the Patriot act as an example. Because we've given the court so much power, 9 people decided that it was legal and completely (in my opinion) stomped over the 4th and 6th amendments. That's partially their fault for knowing full well that what they were doing was shady, but part of that is a problem with those amendments not being specific enough.

I don't fault the founding fathers for that, they didn't have the same level of corruption in the government that we have now and could probably count on the judiciary branch to do their job correctly.

When you don't have good people sitting on the bench, the more they're left open to interpretation, the more value they lose. I'll provide an example.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence

Today, since we've completely given the courts the sole authority of deciding what these mean, unfortunately, these amendments, as they're currently written, are worthless (and I cringe when I say that)

We've given sole ownership of the amendment rulings over to the courts and 9 people get to interprate what "speedy" means, and what "unreasonable" means...and as we saw with the patriot act, they interpreted speedy as indefinitely, and interpreted reasonable as "because the president says so". You give up those two key decision and the rest of it doesn't matter.

For some things, it's far better just to have it clearly spelled out for our own protection, like above, replace "speedy" with "within 60 days" and replace "unreasonable" with "requires tangible evidence" and something as bogus as the patriot act never could have gotten dumped on us.

I still have enough faith in the rest of my fellow citizens that I'd be willing to agree to the idea of interpretations for things like this? Anyone want to go back to the popular vote?

 

[dies-l]

If "we the people" got to be in charge of those interpretations, you might be able to talk me into it. But we have 9 people (each with their own agenda) in charge of this process when it comes to the constitution.

In cases where freedoms may or may not be getting infringed I think there have to be definitive "because the law says so" kinds of laws.

As I mentioned before, I like to use what Bush & Cheney did with the Patriot act as an example. Because we've given the court so much power, 9 people decided that it was legal and completely (in my opinion) stomped over the 4th and 6th amendments. That's partially their fault for knowing full well that what they were doing was shady, but part of that is a problem with those amendments not being specific enough.

I don't fault the founding fathers for that, they didn't have the same level of corruption in the government that we have now and could probably count on the judiciary branch to do their job correctly.

When you don't have good people sitting on the bench, the more they're left open to interpretation, the more value they lose. I'll provide an example.





Today, since we've completely given the courts the sole authority of deciding what these mean, unfortunately, these amendments, as they're currently written, are worthless (and I cringe when I say that)

We've given sole ownership of the amendment rulings over to the courts and 9 people get to interprate what "speedy" means, and what "unreasonable" means. You give up those parts and the rest of it doesn't matter.

For some things, it's far better just to have it clearly spelled out for our own protection. Unless, that is, if everyone is willing to go back the popular vote idea.

It's not a matter of something that I am going to talk anyone into. It is a simple fact that, to be applied, the Constitution first needs to be interpreted. You can ignore it and pretend that your interpretation is not an interpretation ("just taking it at face value" or other such nonsense), or you can acknowledge that all interpretations are just that, but that some are better and more reasonable than others.

 

[ThatRobGuy]

It's not a matter of something that I am going to talk anyone into. It is a simple fact that, to be applied, the Constitution first needs to be interpreted. You can ignore it and pretend that your interpretation is not an interpretation ("just taking it at face value" or other such nonsense), or you can acknowledge that all interpretations are just that, but that some are better and more reasonable than others.

For the sake of keeping the conversation moving in a productive direction, let's call it all interpretation.

Let's define the degrees of interpretation then. Can we agree that there's a huge difference between trying to the determine the meaning of a particular text vs. trying to derive additional and sometimes indirect meaning from a paricular text?

For example, if we had this text to interprate:

Smoking is detrimental to humans and has been known to cause cancer

Can we agree there's a big difference between the following statments?

You shouldn't smoke because there's statistical evidence that it could make you sick

VS.

Since smoking has been knows to cause a fatal illness, and due to the fact that we have laws against killing, tobacco companies are not allowed to sell cigarettes

 

[dies-l]

For the sake of keeping the conversation moving in a productive direction, let's call it all interpretation.

Let's define the degrees of interpretation then. Can we agree that there's a huge difference between trying to the determine the meaning of a particular text vs. trying to derive additional and sometimes indirect meaning from a paricular text?

Yes, and I believe that we are both (as is the ACLU) attempting to do the former. I believe that my interpretation is more reasonable than yours on the one extreme and the ACLU's on the other. The problem is that you still seem to believe that yours is not an interpretation, but simply "taking it at face value". As long as you begin with this incorrect assumption (no matter what you say you are calling it "to move the conversation in a productive direction), you are going to see anything that differs from your own interpretation as "trying to derive additional and sometimes indirect meaning from a particular text".

In the case in question, if you accept that the 14th Amendment precludes state legislatures from making a "law respecting an establishment of religion", then it logically follows that institutions created by the authority of said legislatures cannot "respect[] an establishment of religion" without having caused the legislature in question to have done that which it is forbidden to do. Otherwise, the EC is worth nothing, as all that a legislature would have to do to avoid compliance is to delegate authority to a non-legislative body that would be free to enact policies respecting whatever establishment of religion they so choose.

Rather than place your bets on the "local government is not 'Congress'" argument, which falls flat with the slightest bit of critical thinking, a better place to put your argument would "such and such is not the type of thing that is analogous (after all the ID is all about analogy even in your estimation as many states do not have a body called "Congress") to a law respecting an establishment of religion."

And, so the argument would go that a public school principal who keeps a rosary on his desk is not engaging in conduct that would implicate those who gave him his authority (ultimately the legislature of his state) in respecting an establishment of religion. However, if the same principle placed portraits of Jesus around the school, instituted a "voluntary" Christian prayer time, and engaged in other steps designed to convert students to Christianity or show a preference for students embracing the Christian faith, this would clearly cause such an implication. By your analysis, it would seem that neither of these examples is a violation of the 1st and 14th Amendments. By the ACLU's analysis, perhaps they both would. As far as I can tell, there is a quantifiable difference between the two that causes the latter to clearly violate any reasonable interpretation of the Constitution and the former to not do so.

 

[Autumnleaf]

Prisoners' Rights - Recent Court Cases, Issues and Articles | American Civil Liberties Union

The ACLU is pushing for federal prisons to stop the use of solitary confinement, allowing criminals with life sentences to get out of prison once they're elderly, make sure that the punishments they receive don't conflict with their religious beliefs among many other things that they're pushing for to make prison less unpleasent for criminals.

Am I missing the whole point of prison?

Isn't it supposed to be a punishment?

If we're going to make it nice for them, I have some other ideas.

Now, our criminals can live in dignity and peace without fear of judgment, punishment, or being made to feel uncomfortable.

Here is how the average rational American law abiding guy should view the ACLU. Think of everything that you take for granted as right as it pertains to justice and law enforcement and turn it on its head and that is how the ACLU views it. Don't take my word for it. Send the ACLU $20 to become a member and read the newsletters they send you every month or so.

 

[DeathMagus]

Here is how the average rational American law abiding guy should view the ACLU. Think of everything that you take for granted as right as it pertains to justice and law enforcement and turn it on its head and that is how the ACLU views it. Don't take my word for it. Send the ACLU $20 to become a member and read the newsletters they send you every month or so.

Given America's quality of education, I'm not sure I should be taking my cues from the "average rational American".

 

[Autumnleaf]

Given America's quality of education, I'm not sure I should be taking my cues from the "average rational American".

Yeah, I guess your right. Its not like America is the most powerful nation in the world. Just sayin.

 

[ThatRobGuy]

Yes, and I believe that we are both (as is the ACLU) attempting to do the former. I believe that my interpretation is more reasonable than yours on the one extreme and the ACLU's on the other. The problem is that you still seem to believe that yours is not an interpretation, but simply "taking it at face value". As long as you begin with this incorrect assumption (no matter what you say you are calling it "to move the conversation in a productive direction), you are going to see anything that differs from your own interpretation as "trying to derive additional and sometimes indirect meaning from a particular text".

In the case in question, if you accept that the 14th Amendment precludes state legislatures from making a "law respecting an establishment of religion",

I'm with you up to this point... The document states that the 14th amendment prevents the states from abridging the immunities that are provided to US citizens which is defined by the bill of rights so we're still on track...

then it logically follows that institutions created by the authority of said legislatures cannot "respect[] an establishment of religion" without having caused the legislature in question to have done that which it is forbidden to do.

and here's where our conclusions differ...

I don't see how this is the next logical step. First and foremost, if it was necessary to document the next logical step in terms of the state governments not abridging the federal immunities when it was up for debate (IE: amending the constitution to create the 14th amendment), why aren't we doing the same if we've found another "next logical step" by amending the constitution they same way they did. The folks in charge in the 1860's obviously had a reason for handling things the way they did. If I had to guess, it'd probably be because they got tired of special interest groups arguing over it

To speak to your other statement:
There are plenty of cases in law & government where a particular group can delegate rights to another, lower entity that they aren't allowed to have themselves.

The state legislature gives the right to the State Highway Patrol to openly carry a gun and pull people over, put them in handcuffs, and lock them in a cell. If a member of the state legislature did this to someone, it would be a criminal offense. Is delegating this priveledge/choice to the state highway patrol a violation because they're allowing a group that reports to them to do something that they aren't allowed to do?


I have the feeling that we're going to end up coming to the conclusion to "agree to disagree".