Words ... Weapons of War … for the Heart and the Mind

The book was simply titled. "Propaganda and the American Revolution." Published by UNC Chapel Hill Press, it was, I think, a student's doctoral dissertation on the topic, researched and written in the 1940s. My mom bought it for me from a used book bin at a library book sale. It was paperback and about 400 pages.

I read and re-read that book. It stayed with me through the end of our anti-abortion picketing days here in Jacksonville, through my law school years, through my years as Staff Counsel with @FreeSpeechAdvocates, Litigation Counsel with @ChristianAdvocatesServingEvangelism, Senior Counsel with @ACLJ, and through the eight years that I directed the Washington DC Semester Program of the Regent University School of Law.

It was not a rip-roaring spy thriller.

Rather, it was a fairly interesting, academic examination of how propaganda was used by both Loyalists and Revolutionaries in the period leading to America’s independence from Great Britain. Unless and until you dig below the surface of what is taught in public school history classes, you will miss a singular fact, namely, what a rabble America’s founding generation was. “Propaganda and the American Revolution” serves well as a scuba tank for a dive into a deeper examination of one topic, propaganda, in the context of the revolution.

Surface examinations of subjects like the conditions animating revolution are the best that can be expected in typical classroom studies. That approach may suffice for passing achievement tests, but it won’t necessarily provide an adequate basis, of either information or evaluation, to put contemporary protests in a historical framework.

For example, if you are offended by flag burning by Black Lives Matters protesters or anti-war activists, if the street marches (setting aside those that involve destroying property and visiting violence on others) that have followed America’s selection of Donald Trump as the 45^th President represent a deeply anti-American endeavor, then you probably don't know about, or don’t fully comprehend, the particular pains taken to convince the great middle of colonial America to treat themselves as having suffered horrendous abuses at the hands of the Crown and the Parliament, driving them, if they would, to rise up and throw off the colonial yoke.

In the realm of the imaginative and nonviolent, colonial officials watched as colonists hung their images in effigy in town squares, from "Liberty Trees" and the like. In the world of the painful and violent, colonial officials were, on a few known occasions, painted with tar, dusted with feathers, and literally "ridden out of town on a rail."

(In case you miss the meaning of it, there were no trains in the late mid-18th century. A rail then was a single, extended, member of a rail and picket fence. In other words, being ridden out of town on a rail meant being set, legs splayed and wood rising, on a fence rail, and being carried out of town, with the rail constantly rising in that tenderest location on the human body.)

Sure, we heard about, perhaps studied, the Stamp Act, the Sugar Act, the Townsend Acts, the quartering of troops in colonists’ homes, and King George’s decision to hire Hessian mercenaries to suppress revolutionary sentiment in the colonies by show of brute force. But the fact remains: colonists who lived in those times, experienced those exactions, those impositions, and those threats were apparently content to live under the rough and weighting hand of England.

And that is where the work of propagandists came in. And that is the topic of the book mentioned at the beginning of this post.

So, when you take the closer in look that someone's labors in the colonial historical collections and libraries of New England, the Atlantic seaboard, and the colonial South allows, you begin to understand how the revolution was stood up from the midst of a sleepy young people.

While comparisons to Occupy Wall Street, or Black Lives Matter, or the current round of anti-Trump protests would overstate the case, there was a role in the propaganda campaign for very public demonstrations and protests. Moreover, there are, in today’s blogging, social networking, and tweeting, historical antecedents that were part of the foment for revolution and independence.

THE PUBLIC SQUARE AND THE FLASH MOB.

In September 2012, I traveled to New York City on the Acela Express.

I went to the Big Apple to argue before the United States Court of Appeals for the Second Circuit. My argument would defend a victory I (and the team I supervised) obtained in a federal trial court in New York. This argument would be my last as Senior Counsel with the ACLJ.

The case involved a New York City ordinance coercing Pregnancy Resource Centers to communicate a set of messages chosen for them by the Democratic Party-controlled City Council. The targeting of Pregnancy Resource Centers was a coordinated effort that came to light as select, Democratic Party controlled jurisdictions began devoting precious government resources to the investigation of proposed ordinances and the subsequent enactment of them, and the inevitable expenses of defending them in courts. Jurisdictions that participated in the effort included the Montgomery County, Maryland County Commission, the New York City Council, the Baltimore City Council, and, subsequently, the Austin, Texas, City Council and, most recently, the State of California.

The targeting began in the aftermath of an investigative series by James O’Keefe and Lila Rose in which the willingness of Planned Parenthood facilities around the Nation to ignore evidence of statutory rape of minor females became broadly exposed. That expose led to calls to defund Planned Parenthood – a call that preceded the more recent round resulting from revelations about Planned Parenthood’s ghoulery of infant body parts sales.

In any event, with Planned Parenthood under the hot lamps and Congress being pressed to act, Planned Parenthood’s guardian angels began a counter offensive against what, apparently, Planned Parenthood considers its opposite number, volunteer run, not for profit, often religiously affiliated, pregnancy resource centers. The upshot of those efforts, in New York City, was the regressive, First Amendment contrary, compulsory speech ordinance imposed there. We obtained an injunction against the enforcement of the ordinance, and sustained that victory on appeal.

But, as I said, I traveled to New York City to argue in defense of our trial court win.

When I arrived in Penn Station, I witnessed a beautiful and rising chorus of singing. It was a flash mob that had been drawn to the Station by messages on social media, texts, etc. They slowly gathered, one voice, joined by one, and then two, three, five, twelve. By the time their performance ended, I suppose there were about 30 singing.

Such flash mobs might seem a creature of the 21^st century, but the American colonists knew their revolutionary antecedent:

One of the more common events in the pre-Revolutionary Period was a "funeral for liberty." "Liberty" was carried on a bier, decked with solemn and funereal colors. The crowds mourned as dead dear Liberty passed. The procession would end in the town square or other central location. At the last second, before the pretended interment of expired Liberty, she would rise from the bier, revived, reinvigorated, and rousing the crowd against depredations by Crown and Parliament.

In addition to funerals for Liberty, more than a few protests involved the display of colonial governors or other representatives of the Crown being hung in effigy.

THE BROADSIDE AND THE BLOG.

You are, perhaps to your great pain, reading a post on my blog.

As you do, literally billions of additional words are being poured onto the World Wide Web as blog posts. The topics are nearly innumerable, from whether Kirk or Piccard was the better captain, to whether cats or dogs are the better pet, to whether Bush or Obama were the cause of the rise of ISIS and the decline of the American economy.

These postings, and the sites and services that make them available to us, I call the “internet of words.”

(I would have claimed credit here for that phrase. Unfortunately for me, before I claim a neologism or a neophraseologism, I usually perform a Bing search. In this case, I learned that a book review in the Chronicle of Higher Education, back in 2014, bore the title, “The Internet of Words.” Here, however, I will kidnap the phrase and put it to work for me to identify a subset of internet communications: those that communicate the intended meanings of the creator through writing, rather than images (accompanying images permitted but not as a substitute in the communication of essential ideas)).

Of course, the principal means of communication – aside from the spoken word – at the time of the revolution in America was the printed word. Pamphlets, like Thomas Paine’s Common Sense are well known down to this day, and even studied in civics classes. Another widely spread and effective tool of communication, to which I've at least alluded here before, was the kind of printed publication called a “broadside.” These were printed single sided and were as large as posters popular in the bedrooms of teenagers today.

Broadsides proved effective tools for stirring the slightest embers of discontent into the raging flame of revolution. Such broadsides were numerous. Broadsides included news stories, calls to arms, and warnings of doom. The Continental Congress that issued the Declaration of Independence had it printed in broadside format to distribute widely in the colonies.

THE PULPIT AND YOUTUBE

Vine is gone. Snapchat is a young American’s medium. YouTube, however, cuts across generations. Sure, it carries videos from the latest contemporary musical artists and trailers for coming attractions. But YouTube also carries wonderful products, shorter and longer, of thought and imagination, as well as lessons in history and economics, mathematics, science, and technology. It is on YouTube that we hear the many voices of Anonymous, wearing the mysterious mask from the movie, V for Vendetta. We also hear careful and thorough messages illuminating broadly scattered subject matter.

Muhlenberg's decloaking in the pulpit

In the revolutionary era, the closest things to YouTube were pulpit addresses by ministers and public addresses by speakers. One chapter of “Propaganda and The American Revolution” explored the role of the black-robed brigade. These were pastors and preachers, pounding pulpits, for revolution or for fidelity to the crown.  Probably the most emblematic and readily recognized pulpit revolutionary was the German Lutheran, Peter Muhlenberg.

Whether the Muhlenberg story is apocryphal or true, it is said that Reverend Muhlenberg, after preaching a solemn sermon on the cause of the Revolution, stripped off his clerical garb, revealing a colonial uniform. What is known to be true is that he preached the sermon, delivered men and arms to the cause of revolution, and acquitted himself well in the War for Independence.

But Muhlenberg’s preaching for separation from the Crown was not singular even if it has become iconic. In fact, “Political Sermons of the Founding Era,” evidences the role of the black-robed brigade in fomenting support or opposition to revolution through expository preaching. Edited by Ellis Sandoz, “Political Sermons” gathers hundreds of such sermons, as well as so-called “Election Day” sermons, which were messages delivered prior to the taking of the vote on Election Day. From those sermons, and from the many of them subsequently published as pamphlets that survive in colonial and historical libraries, we can see the profound role of the pulpit in the revolutionary era.

SUMMING IT UP.

“The more things change, the more they stay the same.”

The saying is a truism and a truth.

A significant portion of the American electorate did not get its way in the 2016 presidential election, just as many of us did not get our way in 2012, 2008, 1996, 1992, and 1976. The resort of the disaffected to public protests, and obloquy directed at the victor is entirely American. Violence as a form of protest, however, is neither peculiar to America, nor tolerable nor lawful.

Our colonial experience with despotism still needed a febrile brew to bring us to revolution. Many today, and on all sides, sense the need for revolutionary changes. For some, the revolution leads to localism and downscaled government. For others, the nanny plantation will not be large enough until everyone is on it and everyone agrees with it. I hope that as we face the protests – not lawful, nonviolent ones – we will remember that, however silly or unwarranted we might think their cause, they are exercising a right that we are bound to maintain and respect, if we want it respected in our turn.

Four Minutes in October: The Sieve That is Hillary Clinton

[Location: Deep in strategic command bunker well outside Pyongyang, North Korea] 

[Present are Kim Jong Un and senior military and party officials] 

General: Great Sun of Life, just as the cowardly American dogs had to use, with little testing, their atomic weapons against the dogs in Japan, we should act now. 

Kim Young-nam: Great Leader of our Party and of our Nation, we must act to coalesce the People under the demonstrated strength of you as Leader of the Revolutionary Armed Forces. We humbly request your direct that the Taepodong-2 missiles be fired, targeting the military targets of Hawaii and California. 

Sun of the Communist Future: should I command this daring act of superior might, how long until the craven Americans see the bright sun of our power. 

General: the expected flight time is 30 minutes, oh Great Sun of Life. 

Great Man, Who Descended From Heaven: once I give the command, if I do, how long until the rockets are fired? 

[nervous laughter, and no one answers] 

Invincible and Triumphant General: do you all want to be tied to the rockets? Answer me! 

General: Guiding Star of the 21st Century, the time from command to firing is a national security secret of the highest order. I cannot say in the presence of many here, who while respected and loyal servants of your Glorious Sun, are not cleared for that information. 

Kim Jong-Un: Damn it man! Hillary Clinton told the world it was a FOUR MINUTE period for American missiles to launch after the command, what is our interval!

As a bit of late-night sketch comedy, Kim Jong-Un and Hillary Clinton are perfect foils. If it had nothing to do with the lives we lead. And, Kim will not, under most estimates, be a threat to the mainland United States anytime soon. The Clinton Threat, however, is real and imminent. The nuclear interval leak Clinton made during the last debate evidences the kinds of threats she presents.

You may have been watching that last debate between Trump and Clinton.

At last, we were offered an actual, worthwhile, unbiased moderator, conducting an even-handed, if tough, examination of both candidates. Trump continued to display his down to earth, relatable, and human aspect. Clinton continued with her robotic repetition of scripted nonsense.

Until.

Until this:

Did you catch it?

Four minutes.

Four minutes from an order to launch nuclear weapons until that order is given effect at nuclear launch sites.

Now you and I might presume to know that a certain interlude, possibly quite brief, follows the issuance of a nuclear launch command, before that order is given effect at the launch sites. But ours would be, after all, a presumption, not a calculable certainty.

That is, until the former Secretary of State, who, in that position was high in the structure for command and control of nuclear decision-making, told us, our neighbors, our high school buddies, the drunks at the bar, Englishmen tippling at the tap in late night rounds, and virtually anyone -- friend or foe -- something that we only could have suspected until the mouth that should have stayed shut refused to do so.

Now, there's a much more disconcerting point she made in her "nuclear" free fall. She as much as intimated that nuclear launch officers might mutiny if a launch order came from a President named Donald Trump when she reported their views uncritically. 

Hollywood, of course, has given us the occasional peak into its vision of the American nuclear launch sequence. Here's one such vignette, from "Wargames:"

The fact that four former launch officers support her campaign and expressed concern at Donald Trump's possible assent to the the First Chair of Nuclear Devastation, was, I suppose, meant as a kind of blackmail to America from Hillary. It came across as, essentially:

You elect him, and you may well be destroyed by a surprise nuclear attack, and that without the satisfaction of knowing that there will have been a superior, mutually destructive, attack unleashed by the USA.

As a citizen, I find her intimation, and its unspoken intimidation, offensive at the highest order. While I respect the duty of every person to determine the morality of orders, the former launch officers have made no such moral judgment. Rather, they have said, 

Donald Trump ... has shown himself ... to be easily baited and quick to lash out, dismissive of expert consultation and ill-informed of even basic military and international affairs. 

They have not said that they would have disobeyed launch orders in their times of service, or that they would urge nuclear launch officers to disobey such orders from a President Trump. So we are left to wonder why, precisely, Clinton would raise the subject.

Presumably, she raised the question because the judgment made by a handful of junior military personnel support her contentions regarding the fitness and judgment of Donald Trump. If that were the case, however, what would be the reason to connect the identity of a group that disputes Trump's judgment with the nuclear launch interval, except her implicit blackmailing of the Nation with a non-existent declaration treachery of launch officers that would refuse to launch nuclear strikes because of personal judgments?

Taking Your Polls With a Grain of Salt

One of the harsher criticisms delivered by a New Testament author is found in the Letter to the Hebrews. (If you aren't a "believer," I hope you'll tolerate this brief observation because it leads somewhere important.)

The writer criticizes Hebrew believers that aught, based on the passage of time and experiences of life, to be eating a diet suitable to adults. The writer uses the phrase "strong meat" to describe the diet that the writer expected those Hebrew believers to be of sufficient maturity to consume. (For the vegan reader, that's going to take you sideways if you get locked up on it … maybe think of the writer as having endorsed Brussel sprouts.) The writer's point is that, as adults, from the time our milk teeth drop out and our permanent teeth drop in, we are capable of eating more than breast milk from our mothers.

The writer's criticism focused on those Hebrews that should be, spiritually speaking, on an adult diet of spiritual understanding, but who were, instead, still feasting at the teat, surviving on the barest spiritual nutrition.

“Time to grow up,” I think, was the author's point.

Elections seem to bring out the teat sucker in folks.

I have in mind the consumption of news about presidential polls.

So, in the span of a few short days, we have been invited, courtesy of traditional news sources, to believe that we have swung from a Trump bump to an electoral Armageddon in which the Democratic Beast rises to the throne of America. Is that so obviously the case? If you take the Pablum of predigested summations, you may think it is so.

I think not. And, if you are a thinking person, you may think not too.

If you are a person that isn't content to avoid macerating facts, if you don’t simply accept the spoon fed agenda of the lap dance media, you will have looked through their filters and studied and understood the implications of what is, and what is not, being reported, about polling.

It's time to grow up.

If you have read this far, then I know you are capable of reading and understanding basic written English; to my thinking, that also means that you are capable of getting beyond the Pablum of media reports about presidential polling, that you can, you should actually take up the source information and screen it for its meaning.

Because it seems to be the place where folks shop for polling data, let's use RealClearPolitics and its polling summary page as an example. I've reorganized and reproduced their summary here:

 As shown, the largest sample polling was that of the Los Angeles Times poll. That poll, of over 2000 participants, showed the narrowest margin between Clinton and Trump, a single point of preference separating the two.

Moreover, that poll, based on its sample size had a self-reported negligible margin of error. Finally, among the polls summarized, that poll sought the views of LIKELY VOTERS, and was one of only TWO polls in the RealClearPolitics summary that sough the views of so-called LIKELY VOTERS.

The other poll of LIKELY VOTERS was completed a week prior to the LA Times Poll. It included a smaller polling sample, produced a reportable margin of error, and, while it showed Clinton ahead of Trump, the spread between them was nearly completely covered by that margin of error.

The remaining EIGHT POLLS were all of small sample sizes compared to the Los Angeles Times poll.

The remaining EIGHT POLLS were of a different demographic group. Where the LA Times and Reuters/IPSOS polls sought the views of LIKELY VOTERS, the remaining polls all sought the views of REGISTERED VOTERS.

Give some thought to what this could be telling you.

As a nation, a substantial minority of us, in many cases nearly 50% of those who are not only old enough to vote but are also eligible to vote do not vote. The most recent presidential election in which both the number of registered voters and the number of actual voters is certain, 2004, showed a turnout of about 60% of registered voters. You can check my math here and here.

Of course, there are many uncertainties in every election that can cause variations in the turnout and the outcome. Yet, if the search is for the most likely accurate forecast of how the election actually would turn out, you have to ask yourself, would the more accurate picture be gained by polling those who are registered to vote? Or, would the more accurate picture be gained by polling those who are, based on prior behavior and declared intentions, actually LIKELY TO VOTE?

The wildly ranging numbers in the REGISTERED VOTER POLLS, it seems to me, are exactly what to expect in a large scale group amongst whom nearly 50% are unlikely to actually vote in an election, even though they have bothered to register to vote.

Here’s another curiosity for a “meat-eating” poll reader:

If a poll of REGISTERED VOTERS showed one kind of trend or condition, but a contemporaneous poll of LIKELY VOTERS produced a contrary trend or condition, what meaning, if any, might/could/should we draw from a preference for polls of REGISTERED VOTERS or of LIKELY VOTERS?

Seriously.

Suppose that polling REGISTERED VOTERS produced reliably more accurate results, results that actually matched election outcomes. Or suppose, to the contrary, that polling LIKELY VOTERS did so. In either event, for what possible reason would a news agency or its polling partners choose to gauge the less reliable group?

Think about it.

Suppose you had to make your living betting on the outcomes of NFL games.

If you did so, which of the following would be more important to you: knowing what would be the actual starting line-up for Sunday's game, or simply knowing the undifferentiated list of all 53 eligible players on the team's roster?

To be sure, when injuries require that they do so, coaches will go into the bench; and you will want to know, in turn, about the depth of the bench for various positions, but in the first instance, how likely are you to pick one team over another, or even more so, pick a game based on point spread, if you are told only that there will be 11 unidentified players on one team playing against 11 unidentified players on the other team. The risk of losing on your bets would be enough to make you seek legitimate employment!

If the coach puts a passing quarterback on the field, that is some indication of the game to be played.

Here, the generic "registered voter" is placed in comparison with the more certainly known "likely voter."

If you think it odd for me to focus on the differences to be found in REGISTERED VOTER polls and LIKELY VOTER polls, I’d recommend reading some coverage of the differences. You can read about this topic, in the context of previous elections, here, here, here, here, and here.

And if a media organization likes the odds spread when polling REGISTERED rather than LIKELY voters, and then actually produces only polling of REGISTERED voters, that should give you that one more insight:

Yes, the media does have a preferred candidate, and they don't like the trends among likely voters, so they disguise them by polling a fairly irrelevant group instead.

Bozell Goes Bozo on Schlafly, Carson, Palin, and Huckabee

L. Brent Bozell, of the Media Research Center, and a scion of the Buckley brand, has published an "open letter" to conservative leaders that have endorsed Trump. I say "published" because Bozell, like many leaders in the modern conservative movement, has a reputation of riding on the writing skills of a ghost writer. Nonetheless, let us suppose that Bozell wrote his open letter.

If you would like to read that letter in full, you can find it here.

The essence of Bozell's appeal to his conservative friends is that Trump has flipped and flopped, from quite progressive and liberal positions to conservative ones, and has only done so in the context of his campaign, and that, as to many issues, he still holds quite liberal views. So far nothing new there.

But Bozell fairly pleads for Sarah Palin, Mike Huckabee, Ben Carson, and Phyllis Schlafly to "Do the most courageous thing [they]’ve ever done, in a lifetime of bravery. Retract [their] endorsement."

I wonder how Bozell can claim to be the friend of these folk.

I am not calling him a liar ... and I assume we are not talking about "ghost-friending" through some convenient and socially skilled other. But how can retracting an endorsement that, based on Bozell's view of things is so ill, so wrong-headed, and so poor a judgment be difficult? Is there any thing more refreshing than turning over a new leaf, turning a corner, starting a new venture?

But more to the point, how can Bozell, knowing the personal stories of these four conservative leaders, suggest that flip-flopping on their endorsement of Trump would be a courageous act, let alone the most courageous acts of their lives?

Pompous buffoonery!

"Do the most courageous thing you've ever done in your life, retract your endorsement of Donald Trump."

Nah.

Palin gave birth to a child at high risk of profound medical problems when most women these days would murder such a child in the womb (some would after too).

Schlafly stood against the Equal Rights Amendment to the tune of being a "traitor to her gender."

Carson turned from the path so many black sons of single mothers take in America, made himself a student and a scholar and a surgeon and a leader.

Huckabee fought the battle most Americans surrendered on Big Mac hill, changed his life permanently, and for the better.

No. The most courageous decisions are behind these folks.

Moreover, their evident profiles in courage warrant Bozell's reconsideration, and his repentance of joining in the ugliness of the National Review's attack on Trump earlier this year.

Honest Letter from the Candidate?

Well, that's hardly to be expected. Honesty about the chances of winning the nomination through the primary and caucus process would have driven our Canadian contender, Ted Cruz, and our Buckeye battler, John Kasich, out of the race no later than the conclusion of the New York primary race (though the Buckeye wilted months ago).

Now our own slice of Canadian bacon and our favorite postal scion appear to be in the process of trying to deny to Donald Trump the necessary delegates to do what -- at this stage in the contest -- only he has any prospect of doing:  reaching the magical delegate count of 1237. 1237 delegates voting for Trump in the first round of the balloting at the Republican Convention this summer would result in his nomination.

So Cruz and Kasich have connived to frustrate that march to success. In States where Cruz is running far behind, he appears to have agreed to expend no additional resources in the primary campaign; Kasich has agreed to do likewise. [The nature of this agreement does appear to be tenuous; Kasich has already clarified that, while he will not make devote further resources in certain States, he is not asking his supporters in those States to give their vote to Cruz.]

So, there really is only one explanation for the continuation of active campaigning by Cruz or Kasich. If they were honest, here's the letter their campaigns would release:

My Fellow Americans, 

I come to you today to explain my decision to put my name in for consideration for nomination by the Republican Party for the 2016 Presidential Election.

Now, I am a practical man. 

As a practical man, I recognize that I have FAILED to convince the majority of you to support my candidacy. In fact, I have failed to convince a majority of the members of my own party to support my candidacy. That FAILURE is reflected in my accumulated delegate count and in the abysmal victory record I have thus far accumulated. 

As a practical man, I know that I cannot win the Republican nomination on the first ballot at the Convention this summer. 

At this point, some of you may wonder, "why does he remain in the race?" 

I can tell you this much. 

My continued presence in the race is not at all impractical. I am practical man. So, my practical reason for remaining in the race is to insure that the only candidate for the Republican nomination that has a mathematical possibility of gaining the nomination on the first round of convention balloting is denied that show of unity and support.  

As a practical man, I take this step because I believe the nation would be better off with either an outright communist, Bernie Sanders, or a lying socialist, Hillary Clinton, as our President, than a successful businessman.  

In the same vein, I have joined forces with my other primary opponent to attempt to prevent Donald Trump from winning such States as New Mexico and Indiana. We have agreed to withdraw our resources from States where the other has the best chance of denying delegates to Trump.  

Warm Regards,  

Ted Cruz/John Kasich"

Even the possibility of a Clinton presidency is obscene. 

Clinton is that kind of liar whose trustworthiness lead folks to know that she is lying because her lips are moving. On matters small -- how close incoming fire may have come to her and Chelsea during their Bosnia visit years ago -- and on matters large -- whether the Benghazi rampage was believed by her or the administration she represented to be a spontaneous demonstration gone awry -- Clinton's demonstrated dishonesty is pathological. 

Yet, the best possible explanation for the conduct of Cruz and Kasich is pride. That is, really, the best explanation. These are the losers that refuse to go home. 

Imagine the Jamaican bobsled team mounting the gold medal stand at the Winter Olympics in Calgary so many years ago. True, that team won its way into the hearts of millions ... but it never won its way on the four man winner's stand. Insisting on the right to be awarded what you have not won is not merely gauche, it is a defect of character. 

Here, that defect of character puts me in mind of the after-revealed fact that Mitt Romney sought the Republican nomination in 2012 because he believed himself to be the only qualified person to seek the office. Oh? Really? And now we realize that Cruz, whose high school boast was to one day rule the world, and Kasich honestly believe we cannot possibly understand that only they, and certainly not Trump, are qualified to be president.

Perhaps the coming further humiliations will tame their pridefulness. Perhaps repentance will come while a Republican general election victory is still possible. Perhaps, like the Ghost of Christmas Present, Ronald Reagan will appear to these two dim souls and take them walkabout in a Nation that is weary of insider dealing and insider trading.

I will not hold my breath.

Heckling Jekyll: Silencing Disliked Speech Does Not Enhance Liberty

                Suppose you have an opinion, one about which you care deeply, one that you believe to be the product of thorough study, careful consideration, one that you believe is supported by a rash of objective data. Yet, at the same time, suppose that I, too, have an opinion, one contrary to yours, yet in respect to my devotion to my opinion, one I am satisfied is the product of thorough study, careful consideration, and is supported by a rash of objective data.

                In a free market, we each may propagate our ideas. You, you svelte raconteur, you garner attention seemingly without even trying. I, bald, loathed by former colleagues and friends, in many ways a broken man, I hold my opinion as dear, but I cannot gain a foothold in the public conversation to successfully propagate my opinion. In an ideal world, we would just continue conversing, doing what we could to succeed in spreading the word.

                As events at recent Trump 2016 rallies proves, we do not live in an ideal world. Black Lives Matter activists, Bernie Sanders supporters, and other malcontents, have sought to ARREST the voices with which they disagree, to subjugate the holders of opinions divergent from their own. Today, in Arizona, a highway is blocked by cars, and in some cases, by human bodies cable locked to those cars, to prevent individuals from making the trip to a Trump 2016 rally.

                Brave new world indeed!

                When the tantrums takes these shapes, one harbors fading hope only that the watching populace will realize the Stalinist-Maoist mentality of these folks and reject their decision that the conversation they dislike is the conversation they must silence.

                What these malefactors are actually attempting has a name in the law, other than the names for the various crimes they are committing to accomplish their goal. That name is the “heckler’s veto.”

                The heckler’s veto.

                You’ve probably seen the scene in a movie or television show before. A comic is performing a routine. Someone in the audience catcalls, criticizes. They don’t like the jokes, they interrupt, they insult. A good comic turns the moment into comedic gold. Maybe the heckler has a bulbous nose, or three empty martini glasses in front of her, or is wearing a striped shirt with their plaid sport coat. The merciless riposte serves to liven a weak pattering routine, win the audience’s amused applause, etc etc etc.

                That’s Hollywood.

                The heckler’s veto in real life is, or can be, quite different.

                For example, in 1990, the Ku Klux Klan announced its intention to march to the United States Capitol. Now, Washington, DC, has a long history of playing host to protests and demonstrations. As a federal constitutional lawyer, I have litigated the First Amendment right to the use of the streets, sidewalks and parks in the Nation’s Capital for a quarter century. But when the Klan announced its intention to return to the Capitol, even the Capital’s well-trained policing agencies knew that trouble would follow.

                In fact, the Klan had to go to court to insure its right to conduct the march at all. The City did not want to play host to the debacle … not of the Klan marching but to the repeat of riots that had occurred when the Klan last marched in DC in the early 1980s. Then, and in 1990, the City knew that the Klan would not riot, pillage, break windows, or loot stores. That criminality was the special expertise of anti-Klan protesters, who used the excuse of the insult of the Klan’s presence to justify their wreck and ruin of local businesses. So the City did not want the Klan to march, undoubtedly because the Klan’s philosophy and history is odious, but also because the opponents of the Klan had inflicted serious damage to the city before and were threatening to do so again.

                So, the City of Washington, DC, which preferred not to be laid waste yet again as had been done to it by the British in 1812 and by the race riots following the assassination of Martin Luther King, Jr., took the position that it could deny a permit to the Klan in order to preserve peace and good order.

            Had the matter stood so, the heckler’s veto would have been given full force and effect. The anti-Klan crowd would have succeeded in terrorizing a city’s policing officials and government into submission, into tools to silence the opinion with which they disagreed. The matter came to a federal court, however, and the City was ordered to issue the required permit for the march.

                You can read about the actual incident of the day in this Los Angeles Times report. http://articles.latimes.com/1990-09-03/news/mn-1527_1_police-officers

                The thing of it is, we might all agree that the Klan is odious, hateful, and misbegotten. Even Democrats, who founded and populate the Klan, have come to the view. But there is a difference between a society that suppresses the expression of ideas through terrorist threats of harm, and one that counters odious opinions with truth.

                The Supreme Court’s modern doctrinal interpretation of the First Amendment has always obliged government officers and agencies not to give effect to a heckler’s veto. Put another way, the Supreme Court, in a series of cases, has refused to countenance decisions by cities to refuse permits, or prosecute speakers, out of fear for, or in response to, disapprobation of the speaker’s opinions, even violent disapprobation.

                The Heckler’s Veto cases extend back to the early part of the 20^th Century.

                In response to the spread of socialism in Europe, and the supposed threat of its spread in America, many States adopted statutes prohibiting “criminal syndicalism.” Oregon had adopted a “criminal syndicalism” statute that formed the basis of a prosecution in a case decided by the Supreme Court, DeJonge v. Oregon. The Oregon statute defined “criminal syndicalism” as, “the doctrine which advocates crime, physical violence, sabotage or any unlawful acts or methods as a means of accomplishing or effecting industrial or political change or revolution.” In DeJonge, however, the State of Oregon prosecuted DeJonge for the conduct of a public meeting that discussed ideas for social change. The State never even alleged that DeJonge called for crime, physical violence, sabotage, or other unlawful acts.

                The Supreme Court overturned DeJonge’s conviction. While the Supreme Court left intact the important State interests in protecting the People of Oregon from “criminal syndicalism” in the form of such crime, violence, sabotage, or revolution, it stripped Oregon of the power to make ordinary instances of the right to peaceable assembly and free speech the organic components of such crimes. The Court put it this way:

The First Amendment of the Federal Constitution expressly guarantees that right against abridgment by Congress. But explicit mention there does not argue exclusion elsewhere. For the right is one that cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions -- principles which the Fourteenth Amendment embodies in the general terms of its due process clause. [] These rights may be abused by using speech or press or assembly in order to incite to violence and crime. The people, through their legislatures may protect themselves against that abuse. But the legislative intervention, can find constitutional justification only by dealing with the abuse. The rights themselves must not be curtailed. The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government. It follows from these considerations that, consistently with the Federal Constitution, peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held, but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects. If the persons assembling have committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public peace and order, they may be prosecuted for their conspiracy or other violation of valid laws. But it is a different matter when the State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge.

Now, DeJonge is not, strictly speaking, a Heckler’s Veto case. In DeJonge, the "heckler" was the State of Oregon, seeking not only to suppress the criminal syndicalism legitimately prohibited by law, but also speech with which it disagreed. In the Heckler’s Veto cases, some private citizens take exception to the ideas and expression of other private citizens. The exception they take, however, is exhibited in various kinds of intimidating and even criminal tactics: disruption of public meetings, obstructing public ways, and, of course, as with the 1990s Klan march in Washington, DC, outright threats and crimes.

In Feiner v. New York, the Supreme Court upheld a incitement to riot conviction. In the case, Feiner was addressing a crowd, calling on blacks to take up arms, and heaping insults on local government officials. The crowd became boisterous and the police perceived the danger of an ensuing riot. Important to the case as decided by the Supreme Court was Feiner’s advocacy of violence in a context where violence appeared about to result.

Other cases have fleshed out the Heckler’s Veto, and have clarified that governments cannot base their decisions about the right to express unpopular or unwelcome views based on auditors’ objections to the message. For example, in Glasson v. City of Louisville, a policeman took a sign from a protester and tore it up. The standing order for an event in which then-President Nixon was visiting the City directed police to “destroy any sign or poster that was ‘detrimental’ or ‘injurious’ to the President....”

The idea that one’s right to speak one’s mind would be suppressed because it was “detrimental” to or “injurious” to a governmental official ought to have raised the hackles on those familiar with colonial agitation against King George III and Parliament here in the British colonies. Sure, there was that brief and torrid affair the Federalist Congress had with something called the Alien and Sedition Acts, but in the main, doctrinally, we have seemed to have understood that the key purpose of the First Amendment was, not so much to protect the right to dance about naked covered with chocolate and bean sprouts, to protect core speech directed to the governance of this Nation and its policies and its officers.

Thus, in Glasson, the Supreme Court warned:

A police officer has the duty not to ratify and effectuate a heckler’s veto nor may he join a moiling mob intent on suppressing ideas. Instead, he must take reasonable action to protect from violence persons exercising their constitutional rights.

            The Glasson Court found that the police “exhibit[ed] shocking disregard” of the protester’s “right to have her person and property protected by the state from violence at the hands of persons in disagreement with her ideas.” That principle – police should address threats of crime and violence by targeting those that make such threats or carry them into action, rather than by silencing speech – is the essence of the Heckler’s Veto doctrine.

                And the Heckler’s Veto doctrine carries out beyond the action on the streets.

                In Nationalist Movement v. Forsyth County, the Supreme Court rejected Forsyth County, Georgia’s use of a sliding scale for calculating the cost of demonstration permit fees; the sliding scale allowed on governmental officials’ perceptions about how popular/acceptable or unpopular/objectionable to determine how much such permits might cost to obtain. In cases, for example, where groups like the Klan would march in DC, or like the Nazis would march in Skokie, or civil rights demonstrators would march in Forsyth County, perceptions of unpopularity could result in the imposition of prohibitively expensive permit fees. The Court held, “[s]peech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.”

At the far end of the spectrum, the Supreme Court has left space for exigent circumstances threatening such violence, and so beyond the ability of government to temporize and ameliorate that rule of not giving effect to a Heckler’s Veto can give place to a rule of insuring public safety:  “[T]he law does not expect or require them to defend the right of a speaker to address a hostile audience, however large and intemperate, when to do so would unreasonably subject them to violent retaliation and physical injury.”

Events continue to unfold during this 2016 campaign season.

In Arizona today, a highway has been blocked. Elsewhere, opponents of Donald Trump’s campaign infiltrate his rallies and seek to disrupt them vocally. At the present time, the level of threat of harm and public disruption seems eminently resolvable by normal policing tactics such as removing those that disrupt public meetings, and arresting those that block roadways. As we press forward through this silly season, we would all do well to remember that ideas have a way of sorting themselves out over time. Killing ideas by killing the liberty to express them has proven terribly ineffective. In fact, most of the course of modern history proves that a sure way to propagate an idea is to involve the government in suppressing it. Rather than trying to silence Trump or Sanders, the better path is more ideas, more conversation, more truth.

Another Aesop Fable: The Productive Burglar

In which we learn that most folks will object to having done in their own homes exactly those things that they insist illegal aliens have the right to do in our Nation. A man broke into a home. Inside the house, he found the kitchen, made a sandwich, poured himself a glass of milk, and enjoyed his repast. He found the bathroom, toileted, showered, and treated the glass cuts he got on his hand using the first aid kit under the bathroom sink. In the family room, there were shelves and shelves of books. He found an interesting one, and read for hours. When the family came home, he had discovered that the dad worked from home as a call center operator, had signed in on the dad's accounts and was handling calls. The mother of the family called the police. "We have a trespasser in the home. He's taken our food, used our medical supplies, used our school books, and is currently on the computer doing call center work that my husband's job," she explained. The police dispatched officers. The officers arrived on the scene. After investigating, the officers excoriated the family for their discriminatory and selfish attitude. "It ought to be a crime," the one officer stated, "people like you calling others illegal intruders. It's plain as the nose on my face that he's simply an undocumented family member." "Are you going to arrest him? Remove him?" "M'am," the officer replied, "your problem is you've focused on such an artificial construct as property lines, and private ownership. People like you demean and humiliate men like this. Obviously, he's not interested in a free ride. He was the saucer and glass and utensils he used, he wiped down the shower after using it, he put the used medical supplies in the trash, and now he's handling your husband's work for him, work your husband probably complains about having to do." "So, are you going to make him leave?" "No, m'am," he explained, "there are too many men who are doing just like this in other homes around town. If we actually tried to arrest them all, we wouldn't be able to do any real police work. And, frankly, the costs of doing so are so high that you would be shocked by how it would impact your property taxes." "Well, then," the rebuked woman replied, "what would you suggest I do?" "Yo sugeriría que se aprende a hablar español." (Translation: "I suggest you learn to speak Spanish" MORAL: Claro, usted puede optar por aprender a hablar español , pero si no se va a asegurar sus fronteras , es probable que tenga que aprender a hablar español. (Translation: Sure, you can choose to learn to speak Spanish, but if you are not going to secure your borders, you will likely have to learn to speak Spanish.)

Kali Worship: Why An Immigration Ban Based On Religious Identity Can Be Constitutional

I love to include supporting links and such with my posts. They provide readers with much needed support for my arguments and claims. So I thought I'd find out just which politicians and pundits had slammed as un-American and un-constitutional Donald Trump's proposed temporary ban on migration into the USA of Muslims.

WOW!

If the response had been scripted by the Jeb Bush (failing) campaign for president, it could not have more breadth and depth than, in fact, it has:

• Second Tier Republican Presidential candidate George Pataki: It's “so un-American. I think he’s driving the conversation over the edge. It is not the way Americans think. We want to protect ourselves, not discriminate. The idea that all Muslims who are coming to America pose a threat is absurd.”
• Governor Nikki Haley: It's "unconstitutional" and "un-American". "It's just an embarrassment to the Republican Party. It defies everything this country was based on and it's just wrong."
• Representative Dan Kildee: "Donald Trump's call to block all Muslims from entering the United States flies in the face of the values that make our country great. His comments are offensive and un-American."
• NH State Republican Party Chair Jennifer Horn: "There are some issues that transcend politics. While my position (as party chairwoman) is certainly political, I am an American first. There should never be a day in the United States of America when people are excluded based solely on their race or religion. It is un-Republican. It is unconstitutional. And it is un-American."
• Dick Cheney, former Vice President of the United States, 2001-2009: “I think this whole notion that somehow we can just say no more Muslims, just ban a whole religion, goes against everything we stand for and believe in. I mean, religious freedom has been a very important part of our history and where we came from. A lot of people, my ancestors got here, because they were Puritans.” 
• Second Tier Republican Presidential Candidate Sen. Lindsey Graham said, Trump should "go to hell."
• Ohio Governor and son of a postman, John Kasich, is seeking signers for an online petition to call out Trump. Kasich remarked, "America needs a leader that will unite us, not divide us." 
• New Jersey Gov. Chris Christie called Trump's comments "ridiculous" and "a sign" that the real estate mogul "lacks experience to lead."
• Homeland Security Secretary Jeh Johnson called Trump's idea, "irresponsible, probably illegal, unconstitutional and contrary to international law, un-American." 
• Republican Representative Barbara Comstock: “Well it’s unconstitutional, it’s un-American, and religion is something that’s internal, it’s nothing that you necessarily wear on your sleeve. It demonstrates his lack of understanding of you have to deal with the terrorist threat. It shows a lack of understanding of our basic constitutional systems, but also a lack of understanding of the terrorist threat and how they operate.”

Each of these pundits and politicians is angling for the spotlight. Some for their own presidential aspirations. Others to secure the ongoing support of their own base. Some, modeled after Charles Schumer, just cannot believe that any voice sounds better on any topic than their own. And to a man and to a woman, they claim Trump's proposal is "un American, unconstitutional."

None of them explain why it was pro American and completely constitutional when Jimmy Carter responded to Islamic Revolutionaries seizing US Embassy in Tehran and taking Americans hostage by barring entry to the US by Iranians and expelling Iranian students in the US on study visas.

Sure, we remember his malaise speech, his employing prepubescent Amy Carter as a nuclear deterrence consultant, his brother Billy and Billy's beer (and his cushy Libyan consultancy fees), and his failed Iranian hostage rescue efforts.

But how short the memory comes when it is time to ask, "How in Sam Heck can Trump think it is a good idea, a decent idea, an American idea, to suspend admission of individuals to the USA based on their religious affiliation."

Well, let's pull that question apart in more ways than one.

First, let's remove the skin of offense by pretending we are talking about some other religion than Islam.

Take Kali worship, for example:

Suppose that you're a Customs officer, at Kennedy International Airport.

"Good afternoon, passport please."

The Indian gentleman passes his passport over to you.

You examine the passport. It shows that Khudu Karmakar has a tourist visa and that his passport does not expire for two years.

"Mr. Karmakar, the purpose of your visit to the USA?"

Mr. Karmakar replies, "I have studied America for years. I have greatly admired the high esteem with which your Nation treasures personal liberties. I am here to study and participate in these liberties, to practice them myself, and then to carry word of them back to my home country, where, unfortunately, religious liberty, in particular, is not nearly so highly prized."

You consider his admiring words and his obvious appreciation of the Nation. Truthfully, it warms the cockles of your heart. Obviously, this admission will be an easy one.

"I think we can make this rather quick, Mr. Karmakar. Do you have anything to declare?"

Mr. Karmakar calmly replies, "no sir, only my personal belongings, including my notebooks, religious books, and sacerdotal objects."

Your perfunctory search concluded, you welcome Mr. Karmakar and send him on his way.

You didn't see the ceremonial knife, the incense, the razor, and the River Ganges holy water.

A week later, as you're enjoying a rare Saturday morning at home, you are surprised, well, really, shocked to read that an Indian national had been arrested for the ritual murder of a young American teen, Sue Doe.

Sue's body had been found in front of what, for all intents and purposes, appeared to be a makeshift shrine to the Indian goddess, Kali. Sue had evidently been drugged with rohypnol. Her body had been shaved of all hair. It showed evidence of being freshly washed, although the water did not appear to be tap drawn. And she had been killed in a manner highly suggestive of a ritual killing.

Now, at this point in the narrative, let's step outside your nightmare. You are fairly certain that what you did, your review of Karmakar's passport, your perfunctory inspection of his person and belongings, may have contributed to his admission to the USA, and the subsequent slaughter of Sue Doe.

You flip on the television. Damn Fox News, always being sensationalists, particularly the morning show, in this case, Fox and Friends Weekend. They are interviewing an Indian Studies professor, Doralee Schmirtz. Professor Schmirtz is way too chatty and catty for your tastes. But she says something that drills down into your brain.

"Although the police are continuing their investigation, the description of the scene reported in the news, along with items seized from Mr. Karmakar, have me convinced that this killing was a religiously inspired, ritual sacrifice to the Indian goddess, Kali."

The morning hosts prefer a much lighter fare, to be truthful. It looks and sounds like they'd like to find a way to discover that there was some joke in all of what Professor Schmirtz has just told them, particularly the uncomfortable looking Tucker Carlson.

He interjects. "Just a second, Professor, you make this sound like something out of Indiana Jones and the Temple of Doom!"

The professor, ready for the comparison replies, "fictional accounts like the Indiana Jones movie do lend a certain theatrical air to such things. The fact remains, however, that Kali worship, which is generally suppressed under Indian law and disapproved broadly among the Indian people, has a long and rich history there. That movie undoubtedly exagerated the basic story. The killing of poor Ms. Doe, however, reflects the much more common reality of how Kali devotees seek to acquire spiritual blessings and powers."

Off camera, Carlson's co-host is signalling to the floor director. She'd clearly like to move on.

The professor is not quite so aware, however, and she makes a further point that shakes you up.

"I have it on authority -- the person spoke to me on condition of anonymity -- that this deranged madman entered the USA just a week or so ago, and that, when he entered the country, he brought with him this knife that he used, incense, and a small container of water from India's most sacred river, the Ganges. Forensic scientists are currently testing materials at the crime scene to determine whether Ms. Doe's body was subjected to a ritual washing after being shaved. If it was, and if they can match the materials to the water of the River Ganges, then it seems an undeniable fact that Mr. Karmakar came to the USA intent on committing this horrible atrocity."

At this point, you're feeling fairly sick to your stomach. You're also contemplating a call to your union steward, and pursuit of legal representation in the investigation of your conduct, an investigation likely to follow, and, frankly, not likely to go well.

Let's step out of the narrative again.

The Republican debate is the scene. This debate features all the leading candidates, including Trump, Rubio, Cruz, Carson, Christie, and Bush.

Based on polling, the debate host, MSSYNBC has invited the second tier Republican candidates each to pose one question to a candidate of their choice.

Lindsey Graham: "My question is for Donald Trump. Mr. Trump, you've already shown how un-American you are by saying that we should reconsider the admission of Muslim immigrants to the USA. I have been told that, based on the insane acts of a madman in New York City, you are now calling for a hold on the admission of Kali worshipers to the USA. Have you ever even read the Bill of Rights? Do you have any respect at all for freedom of religion?"

Trump: "Senator Graham, I want to start by saying I appreciated each of the lovely thank you cards you've sent for my donations to your senatorial campaigns over the years. Obviously, I don't expect I'll get any more in the future, because I doubt I could find a good reason to support your continuation in the Senate."

"What you find impossible to believe, difficult to understand, and unmanageable to accomplish has been done by this nation before, to protect its people and its territorial integrity. Even Jimmy Carter excluded Iranians after the radical Muslims overthrew the government there and took Americans hostage. He even threw Iranian students out of the country!"

"The tragic case of Sue Doe should never have happened. It isn't hard to figure out what religions are the source of actual, real, threats of danger to the lives of others. And all I'm calling for here is to take others at their word when they say they mean us harm, and to use their own words and intentions as the basis of excluding them from something they DO NOT HAVE THE RIGHT TO IN ANY EVENT:  entry to our nation!"

The crowd rises to its feet, stomping, shouting, cheering. The noise forces MSSYNBC to cut away to a commercial. In pubs, bars, living rooms, and other locations around the country, Americans join in, "Yes, damn it, yes!"

The start of the Fourth Reich?

Only if it is Nazism to seek to preserve and protect your life, your family, your neighbor, your community from the murderous intentions of others.

With any luck, Mr. Customs Officer, the video loop recording of your station will have recorded over your haphazard disregard for the safety of Americans, and no one will be the wiser to your small part in the death of Sue Doe.

The question remains, why media elites, government officials, and the generally uninformed illiterati make folks who like Trump's call for a pause on immigration the 21st century equivalent of Hitler's Holocaust, rather than of Jimmy Carter's apparently sensible ban on travel to America by Iranians.

In case you do not recognize Mr. Karmakar, his story was told in a 2002 issue of Time Magazine, which related his grisly murder-sacrifice of a young girl as a form of ritual offering to Kali. You can read the story here.

Now, let's consider a second point, namely the supposed unconstitutionality of such a temporary suspension of admissions to the United States by individuals identified by their religious affiliation.

To fully grasp why it is patently wrong to charge that such a policy would be unconstitutional, you need to slip on your gayest apparel and simply think back to matters domestic and judicial over the summer, here in America.

As a result of the ongoing press for the legalization of marriage between persons of the same sex, we have all had some exposure -- at the most general level -- to something called the Religious Freedom Restoration Act. That statute created a right to sue the federal government for restricting religious freedoms -- as exemplified by religiously motivated actions.

RFRA, as the law is called, does not prohibit every action of the government that interferes with religious freedom. Government actions impacting religious freedom regularly survive scrutiny under the act. Some actions, courts find, are not substantially interfered with. Some prohibitions, courts find, are animated by a compelling government interest and accomplished by the most narrowly drawn practical policies.

As a general rule, most actions not specifically targeted by a religious characterizations can be subjected to the government's reasonable regulation. This reality has led to bakers of cakes being told that their religion does not justify discriminating against a same sex couple that requested that they bake a wedding cake for their gay wedding. This reality has led to similar impositions on the religious preferences and beliefs of florists, wedding planners, renters of reception facilities, etc.

The power of the State in all those cases has been directly dropped on religious liberty in the name of some larger (or perceived to be larger) principle. Many who today are condemning Trump, whose use of the Muslim identity as a screen has raised such consternation, oddly lacked a voice when bakers, florists, and owners of banquet halls got shat on by various government agencies.

Here's your "tough to swallow" truth of the day:

Protection of life, liberty, and property counts among the highest orders of government duty. It can, without doubt, be expressed as an interest that is compelling in nature. At that point, we are one third of the way to the ability of the government to successfully fend off a religious liberties challenge to such a policy.

Assuming that Trump's proposal took an appropriately narrow form, such as a ban on travel for a limited period, or subject to a level of screening not currently being used, or only for travelers from stated nations, I have no doubt that such a policy could be described as having been drawn to accomplish its objectives by the least restrictive means. Now we are two thirds of the way to a successful defense of such a policy.

The fact is, though, that the last third of the trip comes first, and it is that third of the trip that would DOOM a CHALLENGE by an excluded immigrant. For a government policy or practice to be successfully challenged, the claimant would have to show that the injury was to a religiously compelled or motivated practice.

The category of folks that can assert that their religion compels them to migrate into America, as a foreigner, is, I harbor the suspicion, quite small. America is not Mecca, nor Rome, nor is it split by the sacred River Ganges, I suppose the adherents of the Church of Jesus Christ of Latter Day Saints -- travelling to Salt Lake City for a celestial marriage ceremony -- might be among the very few that could successfully mount such a challenge.

And, truth is, even asserting such a religiously motivated action has been impacted by such a policy, that is when the two other questions -- compelling government interest and least restrictive means -- come into play.

No, such a temporary policy is not so easily relegated to the ash heaps of unconstitutionality, and that is a thankful thing -- whether we are talking about the real dangers of radicalized Islamic extremists infiltrating among refugees, or the imagined danger of a Kali worshiper coming to America to perform a human sacrifice.