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To: alt.atheism,alt.satanism,alt.religion.wicca,alt.society.anarchy,alt.society.generation-x
From: woody@alumni.caltech.edu (William Edward Woody)
Subject: Re: Constitutional Law was Re: "An Armed Man [sic] is a Citizen..."
Date: Sun, 21 Dec 1997 04:02:56 -0800

[Major snippage]

"Malachias Invictus"  wrote:
> William Edward Woody  wrote in article
> > The United States operates on "common law", not "civil law." What this
> > means is that along with laws, constitutional amendments, and other
> > written proscriptions are a large body of court president and debate
> > which is often used in the interpretation of that law.
> 
> Not exactly.  Common law is based on usage and custom, and is generally
> applied throughout our legal system.  Stare decisis is the doctrine of
> adhering to principles established in prior judicial decisions (unless the
> decisions contradict the basic concepts of justice).  That is where legal
> precedent comes into play.  Common law does not override the Constitution,
> nor does it override statutory law.  Actually the opposite is true. ...

And the interpretation of the First Amendment to uphold Row v. Wade
was...?

Look, prior judicial decisions are used all the time to varyingly increase
or decrease the scope or intent of the various amendments. There is good
reason for this, by the way. Article I, section 7 of the US constitution
provides that congress shall have the right to "make laws which shall
be necessary and proper for carrying into execution the ... powers
vested by this Constitution...".

Meaning that while, for example, the First Amendment protects the
"freedom of speech", actual laws must then be written or modified
to actually provide this protection. And those laws are thus subject
to judicial review--thus, interpretation of the meaning of the
constitution and the various amendments are subject to legal precident.


A specific example that comes to mind is the interpretation in the
district court system that New York is in, where prior court decisions
have given us the strange but amusing interpretation that when a warrant
is announced (in accordance to the 4th amendment), the officer must
announce that he is an officer with a warrant two seconds before knocking
the door down.

(Thats because while the 4th amendment does not specifically state that
an officer must announce himself, prior decisions have interpreted the
"unreasonable search and seizure" clause to mean that the officer must,
amongst other things, make a prior announcement before entering a
building. And of course, that time period was shortened in some areas
to the time it takes the officer to swing a hand-held battering ram
through a door...)


> An act protecting _any_ religious practice that is otherwise illegal is
> unconstitutional.  It is a law "respecting an establishment of religion." 
> I think that the laws preventing interference with Native American
> religious practices that were otherwise illegal had more to do with the
> sovereignty of the reservations than anything else. ...

Absolutely not.

The law protecting native practices applied to anyone recognized as a
native american, even those not living on an otherwise soverign
reservation.

And as I said, the law was overturned, but not because the law was
'protecting a religious practice that is otherwise illegal.' It was
overturned because fundamentally, the Federal government wanted to
stop the loophole being used by members of the Native American Church
to sidestep laws restricting the use of controlled substances.


> > That's because the Supreme Court
> > has upheld an interpretation of the First Amendment which adopts the
> > standard that the "freedom of religion" is the freedom of belief,
> > not the freedom of practice.
> 
> You are free to practice any religion you choose, provided it does not
> break any secular laws.

*sigh*

You are not apparently paying attention. I have cited the law, and you
"suppose" that it has something to do with tribal soverenty. I observe
the current standard that the Supreme Court is using in the interpretation
of the First Amendment protection of religious practice, and you simply
cough up the one-liner above, as if it were defacto true, and my
observations were pointless mummerings.

If you disagree with me, fine. If you don't wish to discuss the point
at hand, fine.

I even go out of my way to give a general overview of how the various
amendments and laws are flexably interpreted, and you try to shoot me
down by nit picking my post with legal mumbo jumbo that apparently
seems designed only to show off your large vocabulary.


Do you admit that the judicial branch has at times applied varying
standards to the interpretation of the various amendments of the
constitution? Do you also admit that this interpretation, while
relying on past legal decisions, has also been variously expanded or
contracted depending on the times?

When I say that the United States is a "common law" nation, one
particular feature I'm refering to is the fact that the various
amendments (such as the First Amendment) has been interpreted
differently at different times in US history.

And very recently, the First Amendment was interpreted as protecting
not only religious _belief_, but also religious _practice._


You see, the various Amendments of the Constitution require laws to
be written to actually implement the intent of those amendments. So
what is a handful of words on a piece of parchment in the Smithsonian
becomes several million words of opinion, law, and court cases.

And the reality is that the protection provided by the First Amendment
is not as cut and dry as your bland oft repeated one liner above.


> > > > Remember: the "freedom
> > > > of religion" originally invisioned by our founding fathers protected
> > > > anyone's right to practice any form of _Christian_ worship, so long
> > > > as it wasn't Roman Catholic. (Jews, athiest, and pagans need not
> > > > apply.)
> > > 
> > > Please check your history.  Many of the Founding Fathers were not
> Xtians,
> > > but rather Deists.  To say that Jefferson signed a document protecting
> > > Xtianity is ridiculous (read some of his writings to see what I mean). 
> If
> > > they meant Xtian, they would have stated so.  
> > 
> > I am well aware of the Masonic and Deist leanings of many of our founding
> > fathers. Many of the colonists here, however, were not exactly of that
> > pursuasion. In particular, Rhode Island wasn't exactly founded by people
> > who had this need to "go somewhere else..."
> 
> Agreed.  That does not change the wording of the First Amendment, however.

*shrug*

At least you have to admit that I have a tiny little clue about
historical mysteries that up until now, you thought only you 
could claim...


> > The law I was specifically thinking of when I wrote my original
> > comment was a federal statue which permitted Native Americans to
> > practice our religious beliefs in traditional ways, and be excempt from
> > certain statues baring drug usage in the process.
> 
> Actually, that statute would be a law "respecting an establishment of
> religion," and thus unconstitutional.

It was not considered unconstitutional when it was written nor when
it was used. In fact, as I recall, it required a legal opinion of
the courts for the law to be struck down--as the standard at that
time was that the "religion" protection clause was that no law should
be passed which <> religious practice.

One could in fact argue that failure to pass a law protecting
native american practices is in fact a violation of the "prohibiting
the free exercise (of religion)" clause. That's because while while
the First Amendment prohibits religious favoritism, it also prohibits
passing laws which interfear with the freedom of religion.

Without that second clause (which you conveniently forgot, thinking
that a law which gives an excemption to Indians for using drugs
in ritual was "respecting an establishment", instead of providing
a constitutionally required excemption), it would be possible for
the US to pass a law outlawing Judaism (for example).


> Are you arguing that if I follow a religion which prohibits me from wearing
> clothes, that I should be able to leave my schlong hanging out while I work
> at Tower Records?  What if my religion prohibits pictures being taken?  Can
> I refuse to have a driver's license and still drive?  Can I refuse to have
> my mug shot taken if I am arrested, on religious grounds.

Such arguments have been made, with varying success.

Example: if your religion prohibits killing people, you can now
register as a 'conscientous objector.' This was not always true, but
when the Quakers fought for their religious beliefs, the army changed
it's policy.

Various groups have in fact shunned clothing for "religious purposes,"
and in fact, California anti-nudity laws only apply to peole who are
undressed for "sexual" purposes. (Of course by default it is assumed
if you are nude in public, you are nude for sexual purposes...)


> > Past laws in various municipalities also outlawed both
> > certain forms of sex (such as the "sodomy" laws), and outlawed
> > "adultery."
> 
> True, but like I said, it is not a specifically laid out Constitutional
> right - it is merely implied.

Hang on a cotton pickin' second. You can't have this argument both ways.

That is, you cannot have a literal interpretation of the rights
protected in the First Amendment *and* also have "implied" rights
that are not literally in those same amendments. (Yes, I'm well aware of
the 9th and 10th. But that's not what you are talking about, isn't it?)


So which is it?

Are the various rights granted by the various amendments (specifically
the First) to be construed literally? Or are they to be "interpreted",
with certain rights "implied"?

Pick one. Don't pick both, unless you have a very good explanation
and are willing to grace me with it.


> > Religious expression, at least for native americans (as myself) *was*
> > a legally viable "excuse" for "illegal" behaviour, such as drug usage.
> > (It was taken away in part because of the activities of the "Native
> > American Church", which used this law as a loophole to permit
> > the use of marajuana.)
> 
> Read my arguments above.  The law was never constitutional to begin with.

WHAT arguments?

You have so far only nitpicked my definition of 'common law', and
the proceeded to say "the native american religious protection act"
was unconstitutional without any argument whatsoever, save quoting
one clause of the First Amendment.

And only just a moment ago, you were noting that certain rights are
"implied"--leaning towards a non-literal interpretation of the
various amendments.


> > > > > Well, being a pagan and a witch, don't think it couldn't happen the
> > > very
> > > > > same way to you.  After all, you might sacrifice some children. 
> > > Doesn't
> > > > > matter that you personally have never sacrificed anyone; we all
> know
> > > what
> > > > > witches do, they sacrifice children.  You don't need to be a witch
> > > anyway. 
> > > > > Why would anyone in their right minds want to be a horrible old
> witch? 
> > > > > Witchcraft should be outlawed...witchcraft IS outlawed..."Take her
> > > away". 
> > > > 
> > > > As I said above, this sort of thing can happen here, and be perfectly
> > > > legal and pass constitutional muster.
> > > 
> > > That is complete bullshit.  Read the fucking Constitution.
> > 
> > Ahem.
> > 
> > California Indians. State of California. Time range 1860 to 1950,
> > <> statehood was granted to California.

> > 
> > 'Nuff said.
> 
> There is a difference - the laws are supposed to be applied to all,
> regardless of religion.  It is unfortunate that reservations cannot be
> considered independent sovereign powers.  If they were, they could regulate
> these drugs themselves.

You don't even know what the hell I'm talking about in the above
quote, do you? (Your reply here hasn't got squat to do with my
comment above.)

Hint: during the period from 1860 to 1950, the various California
Tribes were repeatedly screwed (in many different ways, both
literally and figuratively) by the US government. And the issues
by which my ancestors were screwed have nothing to do with either
drugs or tribal soverenty.


> > (Of course if you live in Lousiana, you are subject to "civil law", 
> > where the law is construde according to a narrow formula of actions and
> > consequences.)
> 
> That is completely incorrect.  Louisiana, just like every other state in
> the U.S., follows common law.

*sigh*

Last year my wife and I went to New Orlenes on vacation. And in the
process, we learned a few things. One in particular is the fact that
the Soverign State of Louisiana traces it's legal heritage back to
French Napolianic law. Civil Law.

In the Federal court system, US (common) law applies. But at the state
leve, each state has the right (because each state is effectively
a soverign nation unto itself) to select the legal process each state
will then use. And Louisiana is a civil law state.

Don't take my word on it.

        http://www.law.tulane.edu/admit/Civlaw.htm



> I am quite certain that my knowledge of law is vastly superior to yours - I
> know plenty about history as well. ... 

That's quite a bold statement for someone who has never met me in person,
or for someone who doesn't know <> about me, except for several
off-hand comments I have made in a few posts.

> ... I still have not heard anything from
> you that suggests that you have examined the law of the U.S. in anything
> but the most cursory manner.

Perhaps that's because you haven't paid my posts any more than a
cursory examination?

I dunno.

But you sure are full of bold statements of "fact", unbacked by
any argument other than quoting at me select passages of various
constitutional texts unfettered with any of the millions of words
of legal opinion that has been written in the 200 years since our
Bill of Rights were first penned.


> > o  The period of western expansion into the Plains States from right
> >    after the Civil War to the end of the "Planes Indian Wars." In
> >    particular, compare and contrast what was promised to the various
> >    Indian tribes through treaties and laws (which, as you know from
> >    your study of the Constitution, are supposed to be legally binding),
> >    with what was actually delivered to same Indian tribes.
> 
> Treaties can be altered at will, and are between the U.S. and a foreign
> nation. This has nothing to do with the court system in the U.S.  The
> tribes got fucked - that has nothing to do with this argument.

Treaties in fact cannot be altered unilaterally at will, unless the
treaty itself provides as such.

And as to not having anything to do with the court system of the US,
I recommend a quick re-reading of Article III, section 2 of the
constitution. (And if you think native americans never took these
various issues to court, you are sadly mistaken. The courts have
been ruling on the constitutionality of the various acts taken
against Indians--either as separate soverign entities or as citizens
of the US--for hundreds of years.)


> >    Also  concentrate on the internment of those Indians after the wars
> >    on reservations, and the various "solutions" used by the BIA to
> >    solve the "Indian Problem."
> 
> This is a much bigger debate than I am prepared to argue here - another
> thread should be started for this.

I suppose. But my point here was to note that a large number of things
have been done to indian citizens which have been held to be constitutionally
valid--which today would sicken the stomache of any good politically
correct neo-Pagan.

> > In every one of these cases, "common law" interpretation was used to
> > either flex--or outright ignore--the interpretation of the relevant
> > constitutional protections.
> 
> Common law really has nothing to do with it - the government did what they
> thought was in their best interest, and later tried to justify it -
> sometimes successful, sometimes not.

*shrug*

You say to-mA-to, I say to-mah-to...

The fact of the matter is our Constitution is not set in stone, but
is a living document.

And while that sounds all well and good, the bad part is that our
constitutionally protected rights are not as protected as many would
like to believe. And it also means your literal reading of the
Bill of Rights wouldn't get you better than a C in a history of law
course.

 
> > And in the case of my original comments
> > about the limited scope of the First Amendment when it was first
> > drafted, just study the history of the various Supreme Court rullings
> > on the First Amendment (a favorite one of the Supreme Court to
> > muck around with) from the time the Bill of Rights were adopted.
> 
> Make a specific point and I shall respond.

I did. But I guess all I'm going to get from you is a cursory glance.

                                        - Bill

-- 
William Edward Woody                 | In Phase Consulting
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