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Constitutional Law

To: alt.atheism,alt.satanism,alt.religion.wicca,alt.society.anarchy,alt.society.generation-x
From: (William Edward Woody)
Subject: Re: Constitutional Law was Re: "An Armed Man [sic] is a Citizen..."
Date: Tue, 23 Dec 1997 01:05:52 -0800

"Malachias Invictus"  wrote:
> First of all, it is Roe v. Wade, as in Jane Roe (like John Doe, for
> anonymity).  Second of all, that was a Fourteenth Amendment case, not a
> First Amendment case (although some justices argued that it also had
> something to do with the Ninth Amendment).  There was no interpretation of
> the First Amendment involved at all.  Please get your facts straight.

1. When a thread devolves into a spelling thread (note that 'e' and 'w'
are side by side, and also note that I just bought a new keyboard for
my Macintosh), the thread usually has no merit.

2. I have already been corrected on this issue.

3. Even though the majority decision by Justice Harry Blackum roots
the right to an abortion firmly on the 14th amendment and not the
first, the essence of my point remains the same: the flexable
interpretation of our constitutional rights can cause the courts to
rule something (in this case, abortion) is legal one year and
illegal the next.

Meaning that our "rock solid" rights are not as rock solid as you have
repeatedly asserted.

> > 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
> ...or challenged...

picky, picky.

> > 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.
> Not entirely.  The Supreme Court is free to and often does ignore precedent
> in its decisions. 

"Are subject to" does not necessarly imply a requirement that prior
precident <> be used.

>  ... It simply states that the old interpretation is
> incorrect.  The Supreme Court seldom overrules its own previous decisions,
> however, so as to provide some semblance of continuity.  That is not the
> same as saying that the Constitution is subject to legal precedent - it is
> subject to the _interpretation_ of the times, whereas legal precedent is
> created by court decisions _based on_ those interpretations - precedent
> cannot alter the Constitution, but a new interpretation of a portion of the
> Constitution can and does alter all legal precedent based upon the old
> interpretation.

Are you just trying to argue for the sake of argument?

I did _not_ say that the US Constitution was subject to legal
precedent. What I *did* say was that the laws that are written
to implement the powers and protect the rights outlined in the
Constitution *are* subject to legal precedent and legal review.

> > Absolutely not.
> > 
> > The law protecting native practices applied to anyone recognized as a
> > native american, even those not living on an otherwise soverign
> > reservation.
> Actually, the Federal Government was playing around with the idea of having
> all Native Americans considered members of a separate, sovereign state
> contained within U.S. borders.  Thus, Native Americans who chose to would
> theoretically not be subject to the same laws as "citizens of the U.S.,"
> regardless of geographical location.  Unfortunately, nothing even
> approaching this idea was ever fully implemented. ...

What does this have to do with the price of beans in Bolivia?

What the Federal Government was thinking of doing doesn't have much
to do with what the Federal Government in fact did. I mean hell, good
ol' Ben (lightnin') Franklin wanted our national symbol to be the turkey,
but that never came to pass either, did it?

> ... The law protecting
> religious practices was an experimental attempt at implementing an
> otherwise good idea that was fucked up by abuses from within the system (to
> many druggies trying to score).
> > 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.
> However, the legal logic used to accomplish this was contained in the
> "respecting an establishment of religion" clause of the First Amendment.
> > > > 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,
> Actually, the applicable law is the law regarding the use of controlled
> substances - this law applies to everyone, regardless of religious
> affiliation.  The law that you keep on going on about was never really
> constitutional - it was just never challenged until the abuses started
> popping up.


I love how you continue to argue with me when it's clear you don't even
have the foggiest notion what the hell I'm talking about. ("This law...
was never really constitutional"--I *love* how you weasel yourself
out of actually having to cite facts.)

The Supreme Court basically adopted it's current interpretation of the
First Amendment's freedom of religion stance whereby freedom of belief
is protected, but not freedom of practice in Oregon v Smith of 1990. 
In the majority rulling written by Justice Scalia, the court tossed out 
the  need for states to demonstrate a 'compelling interest' for passing 
laws which restrict the free expression of religious practice. (Up until 
then, the courts have adopted a 'compelling reason' test whereby laws 
which may inadvertently restrict the free expression of religion would
have to demonstrate a societally "compelling reason" to actually restrict.
While sacrificing people by murdering them was not permitted expression 
(because society has a compelling reason to outlaw murder), the use of 
controlled substances were not.)

But don't take my word on this. Instead, read it for yourself.

And if you wish to find the actual rulling, the cite is:

   EMPLOYMENT DIV., ORE. DEPT. OF HUMAN RES. v. SMITH, 494 U.S. 872 (1990)

which you can search for yourself at

Note that Congress tried to change this ruling by passing a federal
law, the Religious Freedom Restoration Act. In it, Congress attempted
to "repair" the damage caused by the Supreme Court by requiring,
amongst other things, that states again demonstrate a compelling
reason before passing laws which restrict the free expression of
religion. But the Supreme Court struck that act down, claiming
that Congress oversteped it's bounds.

Read more about it at

I'm sorry I was unable to provide you the precise arguments that you
seem to require (and refused to take my word on), as it's been a few
years since I first learned about this on the various native mailing
lists I'm subscribed to.

> > 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.
> Quote me a Supreme Court decision that states that interpretation, and I
> will cease believing that your observations are pointless mutterings. 
> Since you believe you know so much about this particular area of
> Constitutional law, quote the case - and be sure to include the headings.

    'Oregon v Smith', sited above, with web link pointing to an 
    editorial on the subject.

Which brings up an interesting question. Why in the name of hell do
I have to provide citations and proof and evidence, while all you
ever do is rant, rave, and otherwise belittle me for no good purpose?

Don't you think it's easier to go to Infoseek, as I did, and type into
that little box on the left "Native American Religious Freedom"?

Or are you just getting your jollies on trying to belittle me?

> > 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.
> Nit picking is what the fucking law is all about!  Countless cases have
> been won or lost through nit picking - if you had read more about the law,
> you would know this.  In addition, if you do not like my level of
> vocabulary, argue with someone else or get a fucking legal dictionary.  I
> will not refrain from using the proper legal vocabulary in the proper place
> just because you are ignorant of the meanings of the words I am using.  You
> also seem to throw around a lot of legal vocabulary without knowing what
> exactly the words mean - in some cases, I am merely correcting your
> incorrect usage.

First, asshole, I never said that I didn't know what you were talking
about. I only observed that your use of four bit words where regular
english would suffice is a tactic usually reserved by jerks who have
rather large egos and rather small brains.

Not suggesting that you fall into this group, though I'm starting to

Second, as far as I know, in this thread, I've provided a handfull
of pointers to back my argument. And yet you insist on saying I'm 
ignorant, have no idea what I'm talking about, or are otherwise a
'butcherer' of our constitution.

Does calling me stupid in a pulic forum make you feel big and
important? Does it give you a feeling of power to insult me?

> > 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?
> Other than the interpretation relying on past legal decisions, I agree with
> your statements above.

"Relies on" does not mean "required to use."

> > And very recently, the First Amendment was interpreted as protecting
> > not only religious _belief_, but also religious _practice._
> Since it states that "Congress shall make no law respecting an
> establishment of religion or prohibiting the free _excercise_ thereof,"
> that interpretation is really the only logical one that could be made.

Bwwwaaaaahhhh ha ha ha ha ha ha ha!

Just a moment ago, you were saying that the first amendment could
not be interpreted as requiring the passage of laws with excemptions
for religious practice--as this would require those laws to 
"repsect the establishment of religion."

Make up your fuckin' mind! Are you saying that the passage of laws
with excemptions for certain religous practices are unconstitutional
because they "respect the establishment" of religion, or are you
saying that such excemptions are constitutionally rquired because
not providing such excemptions "prohibit the free exercise" of

The above is a trick question, by the way--as the Supremes can't
even make up their own mind on the matter. Until 1990, they said
that states had to have a "compelling reason" to restrict the free
expression of religon. Nowadays, they say that states do not have
to demonstrate a compelling reason--states can pass laws that
incidently restrict the free expression of religion.

This covers more than just anti-drug laws, by the way; the Supreme's
overthrow of the RFRA came as part of a lawsuit that started as
a zoning issue.

> > You see, the various Amendments of the Constitution require laws to
> > be written to actually implement the intent of those amendments.
> Actually, most of them require that certain types of laws _not be written_
> - they provide barriers that the laws may not cross.  How many times have
> you seen a Constitutionally _mandated_ law?  The Constitution was written
> to prevent abuses of U.S. citizens' rights by preventing laws from going
> too far.

Several laws are constitutionally mandated. The laws that establish
the copyright and patent offices, for example, are mandated by
the constitution, as are the laws that implement the 25th amendment.
(Specifically, the 25th amendment only provides that an order of
presidential succession be provided, but not what that succession
actually is. The actual succession order is defined in 3 USC Sec 19.)

Fundamentally the Constitution only specifies what should be done.
How it's done--well, Article 1, Section 8 specifies that the
congress is 'to make all Laws which shall be necessary and proper
for carrying into execution the foregoing powers, and all other
powers vested by this Constitution in the Government of the United
States, or in any Department or Office thereof.'

> > 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.
> Quote some exact cases to show your point.

Done above. Why is it that I have to provide proof to you, but you
don't have to do so for me?

You know, it would be easier for you to belittle me if you were to
provide at least one web site pointer to a legit web site which
backs your assertions. (Web sites maintained by West Law are prefered
to those maintained by left or right wing quacks whose knowledge of
the law was picked up in those little hate mail pamphlets left on
the windshield of your car.)

> > > > 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.
> That is because it was not challenged; when it was, it went down.

Incorrect, as cited above. You really should follow those web pointers.
Here's another one.

It turns out that there have been *many* Supreme Court rullings that
I was not aware of on the subject of the constitutionality (or lack
thereof) of restricting religious expression. And the whole mess has
become even more convoluted over recent years. But it seems to me that
the cornerstone is the aformentioned Oregon v Smith when the courts 
changed the standards used in interpreting the degree of protection 
afforded by the First Amendment to religious practitioners.

> > 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.
> Are you saying that the laws regarding controlled substances should be
> struck down because they "hamper" your religious practice?  If the
> exception only applies to members of your religion, it is by definition
> unconstitutional.

No, what I am saying is that in Or v Smith, the Supreme Court in fact
did change it's standard. Specifically, that the Supremes dropped the
"compelling interest" requirement, making it possible for states to
pass laws which restricted the free expression of religion without
having to show a "compelling interest."

Besides, weren't you just a moment ago arguing that laws which
hampered religious expression were unconstitutional? It would help
if you could pick a single argument and make it, rather than keep
bouncing around between the 'respecting establishment' and the
'restricting free exercise' clauses...

> > 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.
> You would lose that legal argument.  The First Amendment does not _require_
> any laws to be passed, it _prevents_ certain types of laws from being
> passed.  The law in question prevents the use of certain controlled
> substances - any law making an exception to this is a law respecting an
> establishment of religion and is thus unconstitutional.


Well, since about 1988 the chances of my winning such an argument
in front of the Supremes has gone down. But it doesn't mean such
an argument wouldn't have won in the past.

See, for example, CANTWELL v. STATE OF CONNECTICUT, 310 U.S. 296 (1940),
or SHERBERT v. VERNER, 374 U.S. 398 (1963), the latter mentioning the
"compelling interest" test that was overturned in Or v Smith.

> > 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).
> I have mentioned both clauses plenty of times (which _you_ conveniently
> forgot).  Your argument for a "Constitutionally required exception" is
> completely without merit.  If your church gets an exception, then everyone
> gets the exception. Period.  To do otherwise is a textbook example of
> "respecting an establishment of religion."

See the Supreme Court decision cites given above.

I'm actually done arguing with you on this point, as it's clear that
between believing you or West Bar, I'm think I'll pick the latter.
(FYI, West Bar is one of the largest corporations in the United States
which provided legal information.)

> > 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.
> The "conscientious objector" option is available to anyone, regardless of
> religion.  There are other requirements of proof, but religious beliefs are
> not a mandatory prerequisite.  Therefore, there is no First Amendment
> issue.

Ah, but in fact it was, as far as I know.

Here's my understanding. I recall there was a Supreme Court case which
first addressed the issue (U.S. v. MACINTOSH, 283 U.S. 605 (1931)),
where a gentleman was not permitted citizenship because he refused
to take the appropriate oaths--he was a conscientous objector.

As a result of that ruling, where the concept of 'conscientous objector'
was rejected by the Supremes as a legit reason why a man may not swear
an oath to go to war to support the Constitution, Congress passed the
conscientous objector law.

I'm not a lawyer--I'm only giving you the information as I understand it.

> > 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.
> That is all that was necessary.  By the way, I was not nit picking for its
> own sake, I was correcting your fallacious beliefs in its meaning.

Unfortunately, it was also incorrect--see sites above regarding the
Oregon v Smith case.

> > And only just a moment ago, you were noting that certain rights are
> > "implied"--leaning towards a non-literal interpretation of the
> > various amendments.
> Certain rights _are_ implied - that is generally where common law comes in.
>  Where do you get your right to privacy?

Me, I get mine from the 4th amendment's provision to be secure in my
person, home, papers and effects against unreasonable searches.

So where do you get yours?

> > 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.
> List them out on another thread, unless they are dealing with First
> Amendment issues, and we shall discuss them.

We shall _discuss_ them?

Is it possible for you to be more belittling? Or was that your best shot?

> > 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.
> Quote the case making your point about the exception made for the NAN,
> then.  Prove your case.  The First Amendment has certain clauses that
> conflict with what you have been saying - show me the case that contradicts
> my point.

Done and done.

You know, I'm really tired of this little fight we are having. And
after spending three hours finding supporting evidence for my comments,
I've just realized that you haven't done <> other than belittle,
berate, or otherwise insult my apparently inferior knowledge. Not one
cite, not one pointer, nothing save a few dozen words from the First
Amendment which in and of themselves don't even come close to painting
the full story.

Even after my last post, where I did point out a mistake, you simply
note that you erred in passing, and then continue on insulting me.

Well, I've given you enough reading material on the first amendment,
all courtesy of a few hours using Infoseek to jog my memory.

And unless you have something substantial to add to this that doesn't
include more insulting, degrading comments about my "apparent lack"
of knowledge of the law, I would rather that you bugger off.

                                                - Bill

William Edward Woody                 | In Phase Consulting             | Macintosh & Microsoft Windows
NOTE: I'm using PacBell as an ISP for PPP access. Use the Caltech
Alumni account (listed above) for all electronic corrispondance.

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