But What If Ted Can't Be President?

Imagine the scene:

Candidates for the nomination of the Republocratic Party to the office of President of the United States are gathered for a debate. Standing at lecterns, from left to right, are five candidates for the nomination. They are:

White Tail, a Native American, born on a Native American reservation, in the United States to parents that were, as well, and have always been, registeredmembers of their federally recognized tribes and citizens of the United States.

Freddie Fox, born in the United States to Canadian parents, both of whom were born in Canada, claim Canadian citizenship, travel on Canadian passports, but who work in Hollywood.

Bethany Depp, born in France to married parents then living in France but who were born in the United States to parents also born in the United States and that have always been citizens of the United States.

Odala Olama, born in Kenya to an unmarried mother visiting Kenya from her native United States, of which she claims to be a citizen since birth not yet 21 years of age, and to his father, a native born citizen of Kenya. 

Omama Osama, born in the United States to an unmarried mother, a native born citizen of the United States, not yet 21 years of age, and his father, a native born citizen of Kenya.

After eight years of ongoing “birther” controversy, a blogger participating as a questioner in the Republicratic debate asks each candidate to address the following question and its parts:

"Article II of the Constitution organizes the executive powers of the federal government and deposits them entirely within a President of the United States.  That Article also sets the qualifications for the President.  There are not many:  The president must be 35 years of age, must have been fourteen years a resident of the United States, and must be a 'natural born citizen' of the United States.  On what basis do you claim to the meet the qualification that the President must be a natural born citizen of the United States?  What provision of the Constitution makes you a natural born citizen of the United States?  Do you depend upon the operation of a federal statute to claim status as a natural born citizen of the United States?  If you do depend upon the operation of a federal statute to assert natural born citizenship, to what statute do you refer, and on what power of Congress do you contend the enactment of such a statute relies?"

Perhaps we should just ignore the inconvenient portions of the Constitution.  In fact, arguments are made, from the left and the right of the political spectrum, that there already is a whole lot of ignoring the Constitution going on.  We are, however, a constitutional republic. Thus, we aught not simply ignore the provisions of the Constitution that we find disagreeable. The Constitution provides for its own amendment in Article V.  A straightforward reading of Article V omits any process whereby the Constitution is amended by being ignored or reinterpreted.

To the present unpleasantness:

I have concluded that Senator Ted Cruz of Texas is ineligible to serve as President of the United States.  While this statement will result in castigation by others who, like me, love the stand he took in the Senate on defunding Obamacare, I take it because it reflects my honest conclusion regarding the text and meaning of the Constitution.

I could not support his selection as the 2016 nominee of the Republican Party for the Presidency.  I may get smacked around for saying so, but the Constitution limits eligibility for the office of the President to those who are "a natural born citizen" (or who are old enough to have been "citizen of the United States, at the time of the adoption of this Constitution"). US Const. Art. II, sec. 1, cl. 5.

The Constitution does confer a power on the Congress regarding naturalization. Article I, sec. 8, cl. 4 states that Congress has the power "To establish a uniform rule of naturalization." The Constitution does not state that Congress has the power to define what is a "natural born citizen." Nor does the Constitution say that the Congress has the power to determine that individuals born outside the United States are "natural born citizens."

Some have argued that the naturalization power granted to Congress necessarily encompasses the power to grant “natural born citizen” status to persons that would not, by circumstances of their birth, be considered natural born citizens. Those who take that position err. They do so by relying the fact that the English parliament exercised power to grant “natural born subject” status to person that, but for such a statutory enactment, would not have been “natural born subjects” because they were not within the English Common Law definition of such. Unlike the legislative powers exercised in a parliamentary government, however, the Congress of the United States is a legislative body of limited, express powers only. For those, such as Paul Clement and Neal Katyal, that conclude that “natural born citizens” includes persons granted that status by virtue of congressionally enacted Naturalization Acts, their conclusion rests on concluding that Congress was given the power not only to naturalize citizens who were aliens, but to further endow “natural born citizen” status on persons who circumstance of birth did not cause them to fall within the common law definition of “natural born citizen.”

Prior to the ratification of the Fourteenth Amendment, there was no constitutional clause defining citizenship of the United States or how citizenship is acquired. It is only with the Fourteenth Amendment that we have a constitutional provision defining citizenship: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." That clause, however, does not expressly or directly assert that its provision defines the Article II phrase, “Natural Born Citizen.”

The Naturalization Clause cannot properly be the source of a power in Congress to enact laws extending "natural born citizenship" to persons born outside the United States. As the Supreme Court interprets "naturalization," for example in Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 162 (1892), it is "the act of adopting a foreigner, and clothing him with the privileges of a native citizen." Thus, the Naturalization Power is the power to confer a status similar to, but not the same as, "natural born citizenship."

I am not certain how any of my fictional candidates would respond to the questions posed.  Remember those questions: 

[1] On what basis do you claim to the meet the qualification that the President must be a natural born citizen of the United States?  

[2] What provision of the Constitution makes you a natural born citizen of the United States?  

[3] Do you depend upon the operation of a federal statute to claim status as a natural born citizen of the United States?  

[4] If you do depend upon the operation of a federal statute to assert natural born citizenship, to what statute do you refer, and on what power of Congress do you contend the enactment of such a statute relies?"

Were I Ted Cruz, standing at such a lectern, I think my answer would have to be, "My mother is a native born citizen of the United States, therefore I am."  In fact, he said nearly precisely those words in an interview with ABC:  “My mother was born in Wilmington, Delaware. She’s a U.S. citizen, so I’m a U.S. citizen by birth. I’m not going to engage in a legal debate.”  But given his unwillingness to engage in "legal debate" on the question, we may never know what provision of the Constitution he believes makes him a US Citizen.  He has eschewed reliance on the Fourteenth Amendment's Citizenship Clause.  Since the Constitution omits a provision granting "natural born citizenship" status to persons born abroad to American citizens, he most likely would look to federal statutes by which Congress has, justifiably or not, sought to extend natural born citizenship in special circumstances to those born outside the United States.  And here is Ted’s "got ya" moment.

The Constitution DOES NOT CONFER, by its EXPRESS TERMS, a power on Congress to endow any person with status as a "Natural Born Citizen" of the United States. Remember, Congress is not Parliament. Instead, as explained above, the Naturalization Clause grants to Congress the power to provide a uniform rule for naturalization.  Again, in turn, naturalization makes one that is not a citizen into a citizen, by operation of law, not by fact of birth.

I would prefer to be wrong in this conclusion. I am willing to be convinced otherwise by such arguments as rest on the Constitution and sound principles of its construction and interpretation. Those offered thus fair fail to carry weight. Indeed, more often, what is suggested to be noteworthy about such conclusions is who has drawn the conclusion rather than the reliability, historicity or constitutionality of them. Absent a reasoned explanation that dissuades me from my understanding based on history and the law, I cannot support Ted Cruz in his pursuit of the Republican nomination.

Fascist Pillars of the Supreme Court

Sometimes the odd pairing of symbol and substance cannot be winked--in the case of the Supreme Court what you do not know may well hurt you.

The United States Supreme Court has been in its own home just some seventy-five years. When the Union was formed, the Justices of the Supreme Court had no quarters at all, except such as each provided for himself. The entourage of clerks (each justice now may have as many as four) was unknown. The Clerk of the Supreme Court was not paid a salary and he derived his income solely from the receipt of filing fees. Justices were required, together with local federal trial judges, to ride circuits in the newly formed federation, and were subjected to all the discomforts with which the common man was acquainted in travel.

The ignoble status of the Court belied its destiny as the modern Titan of the Constitution. That status was utterly in keeping, however, with the view expressed by Alexander Hamilton, in The Federalist No. 78, that the judicial branch was designed and directed in a way that insured that it would always be the branch of the federal government least dangerous to the rights and liberties of citizens. Writing as Publius, Hamilton reasoned thus: the legislative branch embodied the will of the people, expressed through the legislative enactments of the Congress; the executive branch embodied the force of the people, insuring obedience to the will of the people; the judiciary, however, embodied only the capacity to make judgments; the judiciary was incapable of expressing the will of the people and lacked even the force necessary to enforce its own judgments.

In the scheme of constitutional things, the conclusion of the Federalists regarding the judiciary was reasonable. That scheme, however, unraveled over time. In the course of the Court's history, a definite march toward predominance is easily discovered. From early decisions in which the Court asserted the right to decide the constitutionality of federal and state laws to the most recent decisions in which the Court has cast itself as the preeminent guardian of liberties guaranteed to state citizens under the Fourteenth Amendment, the Court's unfaltering march is toward aggrandizement and consolidation of power on the Court. Today, even sitting Justices reputed to hold a constraining view of the role of the Court, such as Antonin Scalia, seem drawn to the expansion of the Court's powers. In a recent speech, Scalia explained his developing view that Congress was not entitled to deference in its legislative judgments when its legislative judgments consisted of passing statutes of uncertain constitutional stature and then leaving the ultimate disposition of those statutes to court challenges with expedited review in the Supreme Court.

Nor has the danger to the Republic from the consolidation of power in the Court gone unnoticed by leading statesmen in our history. In his first inaugural address, Abraham Lincoln alluded to the Supreme Court's disastrous decision in Dred Scot vs. Sanford. In Lincoln's view, many who sympathized with the Southern cause were willing to allow the policy of the nation to be settled in litigation between private parties. The new president expressed the view that, if Supreme Court decisions were regularly substituted for the popular judgments of the people, our democracy would be at an end:

"[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."

Lincoln's warning about the danger to our republican form of democracy has been left as an artifact, trodden underfoot on the pathway of the Court's ascendancy.

An aside about the history of the Court's quarters and the plan of its architecture is appropriate here.

Again, the Court had no home at all when the Constitution was ratified. When it did find quarters at the first, its quarters were shared. Initially, in February 1790, the Court used, in the afternoons, the same space as the New York General Assembly employed in the mornings. Later that year, the Court, along with the government, removed to Philadelphia. There the Court again shared space in the Pennsylvania State House and then in the Philadelphia City Hall. By 1800, the federal government removed again, to its permanent home: the District of Columbia. There, again, the Court had no home to call its own. Instead, the Court used space in the Capitol otherwise intended for committee meetings. After about eight years, while renovations were proceeding in the Capitol building, the Court actually convened for a period of time in a public house. During and after the War of 1812, the Court got around a bit, meeting in a leased home on Capitol Hill and eventually returning to the committee room that had become their chamber. Finally, in 1819, the Court entered into a period of greater permanence, actually managing to remain rooted in the same chamber in the United States Senate for four decades. In 1860, as the consequence of building expansion by the Senate and the House, the Court removed from its home downstairs up to the Old Senate Chamber, where it would remain until 1935.

It was in the Roaring Twenties that the justices' desire for a permanent and dignified home came into conjunction with the willingness of Congress to provide a home for the Court. Former president and then Chief Justice William Howard Taft headed up the building commission for the Court's new home. Congress readily approved the commission's choice of a plot on East Capitol Street adjoining the Library of Congress and looking onto the Capitol grounds. Chief Justice Taft used his position and influence to insure that his friend, Cass Gilbert, was selected to serve as the architect of the Supreme Court building.

Gilbert had achieved considerable public regard prior to the selection. He designed what was, at the time of its completion, the tallest building in the world, the Woolworth building in New York City. His other public buildings included the Treasury Annex in Washington, DC, and the public library buildings in Detroit and St. Louis.

The effect achieved by Gilbert in his design of the Court matched his goal: the construction of a colossal temple for the judicial arts and science. But not only did Gilbert achieve the creation of colossus. The Court itself continued its march toward the accretional expansion of its authority as well as, in fits and starts, naked power grabs.

In design and construction, except for the Courtroom itself, the Supreme Court building is a showcase of America's natural resources. The granites, marbles, veneers and other natural surfaces all were derived from the quarries and forests of the United States. In stark contrast, however, Gilbert used imported marbles in the construction of the Courtroom itself. For the imposing pillars of the Courtroom, Gilbert wanted to use a fine Italian marble. At the same time, Gilbert was aware that quality control for the selection and harvesting of marble from Italy could be quite irregular. Gilbert's desire for the finest marble faced frustration from the irregular quality of marble obtained from premier Italian quarries. To avoid that frustration, Gilbert turned to the one man who possessed the ability to guaranteed that the finest marble quarried in Italian quarries would be selected to fill the Court's order.

Benito Mussolini, Italy's fascist premier since 1922, was that man. It was to him that Cass Gilbert sent the a sycophantic message suggesting that no finer marble could be found than the Italian quarries produced, and that, with appropriate quality control, Gilbert and Mussolini would succeed in showcasing that marble in one of the most important buildings in the world. In essence, Gilbert appealed to Italian nationalistic vanities and avarice.

The plea succeeded. And when first the Court sat in a home of its own, in October 1935, the pillars with which the late Gilbert's son, Cass Gilbert, Jr., finished the Courtroom proper were the wondrous product of the fascist dictator's efforts to insure that Italy's finest marble supported the edifice of America's highest court.

And it was in that Courtroom, supported on each side by Mussolini's pillars, that the Court carried forward its consolidation of constitutional power. To be certain, there were apparent setbacks. During Franklin Delano Roosevelt's New Deal, conflict between the Court, on one hand, and the Executive and Legislative branches, on the other, made the idea of packing the Court with ideologues inclined to approve New Deal socialistic programs appear likely. These setbacks were ones of appearance, however, more than substance. After all, Roosevelt did not simply ignore the Court into oblivion. Rather, he focused significant thought and energy on the problems it made for his relief programs. FDR's conduct lent emphasis to the role of the Court as a key locus of federal power.

Judicial appointments in the late 1930's, of Hugo Black and William O. Douglas, and in the late 1950's, of William Brennan, further solidified the Court's role as ultimate arbiter of constitutional questions. In the era of Black, Douglas, and Brennan, the Court used the "Incorporation Doctrine" to assert new authority over state and local governments. Proponents of incorporation, such as Black, Douglas and Brennan, have concluded that the Due Process Clause of the Fourteenth Amendment incorporates some or all of the individual requirements of the Bill of Rights into the Fourteenth Amendment.

Incorporationists conclude that, under the requirement that States not deprive any person of due process, the protections of the First Amendment, which are specific guarantees against federal suppression of religious and political freedoms, protect federal citizens from similar usurpations by state and local governments and actors. In like vein, incorporationists reason that federal citizens are protected by state or local government violations of the rights guaranteed by the other provisions of the Bill of Rights.

Of course, by their ratification of the Fourteenth Amendment, the States donated over to Congress the power to enact legislation to accomplish the purposes of the Fourteenth Amendment. Nothing in that amendment, however, suggested that the States deputized the Court to act as ultimate arbiter of the rights of federal citizens. In the present day, however, it is precisely the Court, and not the Congress to which the amendment specifically refers, that is the power-broker under the Fourteenth Amendment. This very point is the one demonstrated by the Court's 1997 decision in Flores versus City of Boerne. In Flores, the Court struck down the part of the Religious Freedom Restoration Act that Congress made applicable to States and localities. The Court opined that it, not Congress, would decide what rights under the Fourteenth Amendment were in jeopardy and required the assistance of federal intervention.

Along the way to present situation, the Court has exhibited many of the same tendencies toward fascism that overtook Benito Mussolini. Such a charge made without support warrants dyspeptic regurgitation. The outlines of that support, at least, have already been amply supplied here.  I cannot help a sense that those who react dyspeptically to this charge suffer from delusions about the present structure and function of the government of this Nation.

I suppose, if one were to adopt Marge Schott's reasoning, we could focus on the significant aesthetic contribution of Mussolini to our temple of justice. Schott, then the owner of the Cincinnati Reds baseball franchise, you will recall, took heat for her thoughtless bromide that Hitler started out as a man who helped his people and improved their lives. We could temper our distaste for Mussolini and his proclivities by recalling that it was Il Dulce who guaranteed that our Supreme Court was constructed with the finest marble. With a similarly blind eye, we could temper our distaste for the present imbalance of powers by delighting in the real if invalid benefits individuals have garnered from a Court that has usurped both Force and Will from both federal and state loci of power. After all, has not the Court has guaranteed individual liberties against State, Congressional and Executive infringements? If we do not put too fine a point upon it, the Court has frequently acted, even if beyond its authority, to the benefit of individual rights and liberties.

Fascism takes its name from the word for "bundling." In the case of fascists, what is bundled is power. Modern dictionaries define fascism as a system of totalitarian government. The nearly completed march of the American federal judiciary toward predominance in the federal balance of power and in the federal-state balance of power resembles just such a bundling of varied sticks and branches of power. And so the symbol, pillars of Italian marble, guaranteed superior by a fascist dictator, finds substance in the bundled and unconstrained power of the United States Supreme Court.

Terror at Twenty Thousand Dollars: Obama or O'Gremlin?

I know folks flying with him thought William Shatner was crazy, in that old episode of Twilight Zone, because only he could see the gremlin tearing up the wings of the passenger plane.  Is there anyone beside Gerry that looks out on the wings of American healthcare and misses the destruction being worked by that Gremlin at 1600 Pennsylvania Avenue?

Here's what prompts my question:

I called Congressman Gerry Connelly's office (my representative, after all), to instruct him to vote against funding enforcement of Obamacare.  As part of that conversation, explaining the damage that the misnomered "'Affordable' Care Act" is inflicting, I explained that my son, who has worked for Trader Joe's for several years, has recently learned that he, along with thousands others of TJ's non-management (part-time) crew would be cast adrift from TJ's insurance coverage.  That marooning of TJ's crew IS THE DIRECT IMPACT OF Obamacare on them.

Just days later I get a close typeset letter from Gerry, confirming his continued faith in Obamacare as the cure for what ails our health care system.

This morning, as I write this, twenty thousand part-time employees of Home Depot are waking up to discover that HD is eliminating health insurance coverage for them.  This IS THE DIRECT IMPACT of Obamacare.  And, to top it off, as I write this word comes that 160,000 Walgreens employees will be out on the insurance market looking for coverage because of the financial impact and costs to their employer of compliance with Obamacare.

Of course, Gerry is for government gerry-mandering of markets.  As the inept chair of the Fairfax Board of Supervisors, he tried to impose the Affordable Garbage Service ordinance on us residents.  Then it was our incompetence to negotiate for garbage service with private companies.  Today it is our incompetence to negotiate with employers and insurance companies.

Gerry's instinct -- ALWAYS WRONG -- is that the government can do better for us what we have the right to do for ourselves.  He is welcome to insist on it, even though he is wrong.  What he is not entitled to do is claim as truth what the facts show to be false.  His FALSE CLAIMS are that Obamacare would "bring down premium costs for families and small businesses," "reduce the deficit," "protect [individuals'] choice of plan and doctor," and "improve access to care[.]"  (I excerpted these Connelly claims from his letter to me, dated September 13, 2013.)

It is a unhealthy mania, a mental illness, for him to insist that Obamacare is having the salutary effects of controlling costs and increasing availability, when costs are spiraling upward, companies are departing markets, and businesses are moving THOUSANDS OFF their prior company-based coverage.  Just as it was an unhealthy mania for the FLIGHT CREW and PASSENGERS on Bill Shatner's flight NOT TO SEE THE IMMINENT PERIL in which he knew them to be.

The O'Gremlin has scarred the Nation fairly badly.  His economic recovery has worse indicators than George W. Bush's recession.  More than 90 million Americans have departed the labor force -- improving employment numbers ARE NOT a reflection of a growing full time work force, but a shrinking pool of those seeking employment.  Record claimants for SNAP, the program formerly known as Food Stamps.  Debilitation of the military.  Increased racial tensions across the Nation.  These are all evidence of the O'Gremlin at work.  Gerry Connelly can whistle past the graveyard ... and I can remind folks of his mania come Election Day 2014.

History Favors the Political Pulpit

In the mid-2000’s, the House of Representatives had introduced a piece of legislation – the Houses of Worship Political Speech Protection Act – designed to address the bullying of pulpits by the IRS, and by liberal advocacy groups such as Americans United for the Separation of Church and State.  Had it been enacted, the Act would have changed the tax code by adding this language to it: 

“`(q) An organization described in section 170(b)(1)(a)(1) or section 508(c)(1)(A) shall not fail to be treated as organized and operated exclusively for a religious purpose, nor shall it be deemed to have participated in, or intervened in any political campaign on behalf of (or in opposition to) any candidate for public office, for purposes of subsection (c)(3) or section 170(c)(2), 2055, 2106, 2522, or 4955 because of the content, preparation, or presentation of any homily, sermon, teaching, dialectic, or other presentation made during religious services or gatherings.'”

The legislation would not have affected the status quo for certain churches, and would have leveled the playing field for others.

The churches unaffected by the legislation would be those for whom no serious threat of IRS enforcement activities ever existed.  Those churches include the 500+ African American churches that not only had direct endorsements of  Jesse Jackson’s 1988 short-lived campaign for the Democratic nomination for President but actual had a coordinated, pulpit plea for donations to Jackson’s campaign.  Churches for whom the playing field would be leveled would include, for example, the Church at Pierce Creek, a Binghamton, New York church targeted for enforcement by the IRS after it ran paid advertisements in national daily newspapers opposing the 1992 candidacy of Bill Clinton because of disapproval of his stance of issues of concern to the Church.

The legislation had opponents.  In answer to some of their arguments, I penned a blog post on the Act, and the historical basis for political sermons even in election seasons.  As we move toward Virginia’s off-year gubernatorial election, there may be reason to anticipate church voices speaking to the election.  Take these thoughts as my view that the voices should not be silenced:

Let My People Go: Unleashing the Church by Unmuzzling the Pulpit

May 28, 2009 at 10:11pm

Wherein we learn that some folks have nothing to fear but liberty itself.

In an episode of the old “Star Trek” television series, Captain Kirk and two of his officers are kidnapped during transport and made to serve as slaves/thralls on the planet of Triskelion. Those who are familiar with Captain Kirk’s embodiment of the American ideal of liberty will realize the collision that had to occur between his fierce independence and the demands of servitude, particularly when that servitude was enforced with a restraining collar that was used to temporarily (or permanently) asphyxiate the sullen or disobedient thrall.

But the use of the collar as a means of restraining independence was already a decade old in America when “The Gamesters of Triskelion,” was beamed into American homes in 1968. But instead of a Triskelionian collar serving to constrain belligerence, the strictures of obedience to which I refer were accomplished by threatening the tax-exempt status of churches for the political expression of their “collared” clergy. And it is that constraint and enslavement that are squarely targeted by the Houses of Worship Political Speech Protection Act.

It appears, however, that Pat Murphy is entirely comfortable with the illiberal circumstance of federal censorship of speech in houses of worship. But for two points, Pat Murphy’s concerns about the Houses of Worship Political Speech Protection Act would be well taken. Unfortunately for Pat, those two salient points make all the difference in the world. Because they are dispositive, they deserve consideration. The first point about which Pat appears to be wrong is the current state of affairs for religious houses of worship in United States of America. If the current state affairs for churches in America could be described as “well enough,” then it would make perfect sense to leave “well enough” alone. Too many tales have been written about the disasters that befall folks who continued to tinker in pursuit of a perfection that cannot be attained on this mortal coil. Houses of worship would do well – if indeed they have got it as good is it can get – to decline to tinker with their circumstances.

Do houses of worship have it good as it can get? By “as good as it can get,” I mean to ask only, do houses of worship enjoy the freedoms that our Constitution, our Declaration of Independence, and our history suggest that they should. Plainly they do not. Instead, since 1954, the United States government has asserted a right to decide appropriate topics for discussion and instruction in American churches, synagogues, and mosques. That year, then-Senator Lyndon B. Johnson slipped through the Congress that now familiar band on political involvement by organizations that enjoy nonprofit status under federal law. Johnson’s stealth attack on the liberty of American religious institutions reflected the danger one religious organization in Texas presented to his reelection prospects.

Apparently, Senator Johnson considered his continued presence in the United States Senate a value more important than the liberty of the pulpit in United States houses of worship. So, in a perfectly understandable – yet entirely inexcusable – act of self-preservation, Johnson pushed through the restriction that now is used by the Internal Revenue Service as a muzzle on the Nation’s reverends, rabbis, and religious. There was a time in our Nation’s history, when our religious leaders could be counted on to speak truth to power. In his powerfully persuasive, “Propaganda and the American Revolution,” Philip Davidson demonstrated the key role played by pastors in pulpits in creating a condition of openness to the idea of revolution. Davidson reminded us that these clerics, because of their service and their attire were known as the “black brigade.”

Examples abound of their clear exposition of Scripture, their persuasive rhetoric, and their unflinching pronouncements. Those unfamiliar with the role served by American clergy during the time of the American Revolution and the founding on our Republic would do well to spend some time reading in a collection of sermons from that era. The collection is entitled “Political Sermons of the American Founding Era, 1730–1805," edited by Ellis Sandoz.

One particularly relevant sermon – given Mr. Murphy’s concern regarding the threat that reinvigorated liberty of speech may pose to American pulpits – was John Mitchell Mason’s “the Voice of Warning to Christians on the Ensuing Election of a President of the United States.” Reverend Mason delivered the sermon while he was the pastor of the Scotch Presbyterian Church on Cedar Street in New York City, and published it as was a custom of the time and circulated following its publication.  Entitled “the Voice of Warning,” Reverend Mason’s jeremiad stated in clear and unmistakable terms the threat that Mason perceived in Thomas Jefferson should he win the pending election contest for the presidency.

Mason explained in the subject of his sermon in this way:

“To lay before the people of the United States, proofs that a candidate for the office of their first magistrate, is an unbeliever in the scriptures; and that to confer such a distinction upon an open enemy to their religion, their Redeemer, and their hope, would-be mischief to themselves and sin against God . . . .”  

II Political Sermons of the Founding Era, 1730-1805,” at 1452 (Ellis Sandoz 2d ed. 1998). 

Entirely as an aside, one ground upon which Rev. Mason found Jefferson an unacceptable candidate for chief magistrate (President) was related to Jefferson’s peculiar views regarding the natural history of the African. Mason correctly quotes Jefferson as saying, regarding the African, “their inferiority is not the effect merely of their condition of life . . . .”

Rather, in Jefferson’s opinion, “the blacks, whether originally a distinct race, or made distinct by time and circumstances, are inferior to the whites in the endowments both of body and mind.”  II Political Sermons of the Founding Era, 1730-1805,” at 1457 (quoting T. Jefferson, Notes on the State of Virginia, at 205, 209).  To Mason, the view that the African was created as a race distinct from the white man or the red man evidenced an incontrovertible proof of Jefferson’s rejection of the teaching of scriptures on the origins of mankind. He explained, “The scriptures teach that all nations are the offspring of the first and single pair, Adam and Eve, whom God created and placed in Paradise. This fact, interwoven with all the relations and all the doctrines of the Bible, is alike essential to its historical and religious truth.”  Id.  Multitudinous are the examples by which the former liberty of the pulpit in America may be proven.

To think that our history has been otherwise is to choose only the last forty years of our common life as the book from which our history will be taken. So, in this first point, Mr. Murphy is not well taken. Houses of worship in America are constrained greatly in their liberties in a manner inconsistent with the practices of the time of the founding of our nation, the drafting of its essential documents, and the understanding of those documents by those who drafted them. That constraint approaches a half-century in continuation.

Our nation’s history exceeds two and a quarter centuries, and in the vast majority of that time, the liberty feared by Murphy and promised by the Act in dispute now delighted in the pulpits.

The second principal point of error in Pat Murphy’s thinking is his perception of the future under the proposed legislation. Adopt this legislation, Murphy prognosticates, and the Bush Dynasty will be insured with the ultimate succession to the presidency of Jeb Bush and then the Jeb’s son, George Bush. 

Murphy’s fever unabated, he sees John Ashcroft elevated to Chief Justice of the Supreme Court and set loose to undermine and wreak havoc upon established American legal doctrines. His temperature rising still, Murphy hallucinates an approaching era in which pulpit oratory is debased into mere political endorsements and there is lost forever to worshipers the expected and biblically appropriate reproof for and correction of sin and instruction in righteousness.

This argument of Murphy’s falls into one of the common logical fallacies in argument: the slippery slope. That failure in argument is familiar. If we allow point A, then inevitably effect B will occur. That effect B will in turn inevitably cause effect C. Before we know what has happened we will have leapt from A to Z. This argument musters no fact in support of its premises; this argument musters no indelible principle to prop it up. It appeals to the fears that some will always have that are unconnected to reality.

Murphy’s argument, taken to its logical conclusion, is a warrant for never passing a law, indeed, for never doing a thing. After all, the good that the law might do will be outweighed by the evil that will subsequently come. But human experience and more than a thousand years in our Western traditions teach us that the barbarians are always at the gate, that evil always runs on the fastest feet, that no good deed will go unpunished, and yet that we must still put our hands to the plow and accomplish the work of the day in which we are. At his heart, then, Murphy is a nay-saying doom-and-gloom artist whose soothsaying franchise offers no more in the line of credibility than that of the notorious Jamaican psychic, Miss Cleo.

The Houses of Worship Political Speech Protection Act restores a liberty to pulpits that is increasingly unfamiliar to those who stand in them and those who sit before them alike. That a cantankerous and crafty politician succeeded in stripping that liberty in the past is no reason not to work for the restoration of that liberty. Nor is there reason to fear the restoration of that liberty in the workings of Murphy’s febrile imagination.

Halloween's Coming! Hide Your Zero Tolerance Policy!

The local grocery and discount stores have had Halloween candies and costumes out for a couple weeks already.  With the snap of cold air here in the Metro DC area, the early display of Halloween goodies now doesn't seem so early.  Halloween's triumphal approach reminds me of a short piece I wrote a few years back, touching on the strange intersection of Halloween and a public school's "zero tolerance" policy regarding "weapons" in school.

Read on, and try not to weep:

The Bad News? The Schoolhouse Burned! The Good News? No Weapons Were Used!

From Thursday, November 05, 1998 09:58:07 AM

In which we learn that the inanity of public school political correctness makes two innocent things, Halloween parties and firefighters, object lessons on the dangers of fearing imagined dangers.

Call it a character defect if you must, but I enjoy Halloween. Probably, the pleasure I take in the day simply is a reflection of the happiness it brings to children. In that case, of course, I have the privilege of having lots of reflected Halloween delight shine around me: my wife, Terri, and I have eight children. It might also be, of course, that celebrating Halloween is such an Irish-American contrarian thing to do. After all, even if all doctrinal differences could be resolved among the various communions of the Christian faith, don't you strongly suspect that too deep divisions separate those Christians who demonize the celebration of Halloween, Easter and Christmas, on one side, and those who celebrate these days for their religious significance and as welcome opportunities to spend time with family and to share in the cheer that holidays bring.

Although I enjoy Halloween, I do not like what the slasher movie crowd has done to co-opt this children's event. So, in our home, you will not find ghouls, Freddy Kruegers, demonic minions, or such other characters. You will find little pumpkins running around, and we have had Injuns (er, make that Native Americans), Arabian princesses, gypsies, and even an escaped convict in the classic black-and-white striped suit. Obviously, by guiding my children to innocent and fanciful characters, and by barring them from the macabre, I am helping them to actually experience the fact that fear is not a prerequisite to fun, and that noodling with dark images is not where the children of the light should be found.

Other lessons have also been taught as part of Halloween observations around our Nation. In Deer Lake, for example. There, the lesson is one that truly amazes. One five-year kindergartner and his mom visited a local shop where they purchased a fireman's costume for the boy to where to school on the Friday before Halloween. Little Johnnie, it seems, wanted nothing more than to emulate one of those often-heroic figures that loom large in our communities when lives, homes or businesses are endangered by fire. So the Little Fireman headed happily off to school and his mom headed in to the office for the day. Neither Johnnie nor Mom gave thought to the terrible dangers to which they were subjecting Johnnie's schoolmates and teachers that day.


You see, Johnnie did wear his Fireman's costume to school, even the attached plastic fire ax. When teachers and administrators saw Johnnie all gotten up like a fireman they noticed that his costume included that plastic axe. According to the principal, by bringing that plastic ax to school, Johnnie had violated the school's weapons ban and the school's policy against glorification of violence. Johnnie's mom, who took the unexpected call at work, asked that his plastic fire ax be kept by the custodian at the school till she could pick it up. And, on Monday, when all Johnnie's classmates returned to school hopped up on their Halloween sugar, Johnnie was made to cool his jets at home: carrying the axe to school cost this wayward kindergartner a one-day suspension.

A lot that passes for education these days is unmitigated silliness, or worse. Here, a little boy, who, we hope, never actually needs the assistance of a fireman in a life-threatening conflagration, is tagged as a rule-breaker and a child with a penchant for violence because his proper admiration for firefighters led him to choose a costume that included a plastic toy fire ax. Worse, the unrepentant principal later commented that she could not allow Johnnie to keep his replica "weapon" at school because she did not want to communicate to children in school that violence was ever appropriate!  What errant knavery benights that educator? A fireman's ax converted into an emblematic weapon? The poison of political correctness must be like DDT, passing through the system until it accumulates in the brain and deprives the host of any capacity for rational consideration.

I have visited a firehouse, with several of those happy Halloweensters of mine. We have scrambled through the fire engine, the hook and ladder truck, the rescue squad, and the ambulance. Now that my eyes have been opened by the case of Little Johnnie Fireboy, I realize that I was actually passing through an armory, a battery. Those trucks each had pick-axes, fire-axes, and similar instruments. Before my enlightenment, I foolishly believed that these dangerous weapons were merely tools kept handy and ready so that a fireman could act quickly to save lives and property during a fire. Now I realize that these axes were weapons; they were nothing more than the accouterments of an inflammatory band of barbarians.

Ray Bradbury, the science fiction author, has had something to say about firemen and revisionist history. You can read his words in a little tale called Fahrenheit 451. In that story we read about a fireman of the future, the future being a time when the job of a fireman is to find and to burn books. Everyone agrees that this is how it has always been. But the protagonist in Fahrenheit 451 hears other voices, investigates, and concludes that burning things is not really why fireman exist. Here, in the little community of Deer Lake, a principal has actually accomplished that which Bradbury could only envision in fiction; she has converted the truth into a lie. And, she has done it in a way that seems intentionally part and parcel of the revisionist, anti historical, facts-be-damned progress of political correctness in American education.

Given the fact now established that fireman's tools are weapons, and that the use of a fireman's tools is just more macho violence, I admit secret bemusement over the bind into which the principal at Johnnie's school has placed herself. What if her house catches fire? Have the fireman in her community learned the valuable lesson that she taught Johnnie? I don't know about you, but there is a part of me that hopes any fire stations responding to that Principal's 9-1-1 call will have the decency to leave their weapons at home.