Separation of Church and State and the Politicians that Don't Understand It

Recent debate comments in Delaware serve to illustrate just how ignorant or disingenuous our current crop of politicians are with regards to the concept of "separation of church and state".

In a debate on Tuesday October 19th, Republican candidate Christine "the witch" O'Donnell criticized Democratic nominee Chris Coon's position that teaching creationism in public school would violate the First Amendment by promoting religious doctrine.

O'Donnell asked "Where in the Constitution is the separation of church and state?", and Coons replied that the First Amendment to the Constitution prevents Congress fro making laws respecting the establishment of religion, whereupon O'Donnell said "You're telling me that is in the First Amendment?"

The First Amendment to the Constitution of the United States says verbatim: "Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances."

At play here is the fact that the concept of "separation of church and state" doesn't exist anywhere in our Constitution. Historically, this term first appears in a private letter written in 1802 from President Thomas Jefferson to the Danbury, Connecticut Baptist Association.  He writes: "Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof", thus building a wall of separation between Church & State."

Interestingly enough, this letter was in response to a written concern by the Danbury Baptist Association that, at that time (prior to the establishment of the 14th Amendment), the Federal Government could force out a state's official church. 

It is important to remember the context in which the States demanded the addition of the first ten amendments to the U.S. Constitution before they would ratify it.  The First Amendment prevents the government from imposing its will upon the people with regards to religion. With their freedom only newly won, the memory of religious oppression and forced conversion by royal rulers was strong enough that they wanted this freedom specifically protected.

Does teaching the concept of creationism in public schools rise to the level of "establishment of religion"?  I do not think so, although better minds than mine have spent much time debating this touchy subject.  Although the United States was founded by men who were primarily Christian in their beliefs, the concept of the world having been created by a singular divine intelligence or pantheon of divine beings is common among nearly all religions. I would agree that any program that would teach the concept of creationism to students in public schools would need to present more than the history as expressed in the book of Genesis (which is a common belief of Jews, Christians and Muslims). But again, would even such a carefully designed program actually bring about the establishment of religion in our schools? I argue that it would not.

More importantly, the "separatists" are perfectly happy to quote the first segment of the first sentence of the First Amendment, but often fail to address the second segment of that same sentence: ... "or prohibiting the free exercise thereof".  While I do not fall into the category of those who take a very literal interpretation of the creation of the universe and the earth from the book of Genesis, there those who do.  If our public schools fail to teach about the alternative belief of creationism, would the government by proxy be guilty of prohibiting the free exercise thereof?  Those students are being presented with a view of the creation of the earth (evolution) which is, in their interpretation, entirely invalid. In other words, those students are being forced to supress their belief in how the world came to be.  I think that this is clearly a violation of the First Amendment of the Constitution.

So... to bring this back around to Chris Coons and Christine O'Donnell.  Chris Coons clearly believes that teaching creationism is schools would be a violation of the principle of "separation of church and state". I would only agree with him if only the Genesis creation story would be presented.  But in contrast, Christine O'Donnell should be aware of the fact that when President Jefferson first laid the words "wall of separation between Church & State", he specifically quoted the entire first clause of the First Amendment. Therefore, President Jefferson clearly intended those words to be associated with the protections provided by that Amendment.

Intended Consequences of SB 1070, and the Pain it Will Cause.

Today, azcentral.com ran a story about one of the very predictable results of the new Arizona immigration law (SB 1070); illegal immigrants going even further underground than they currently do.

The article is here.

The first thing about this article that caught my eye was the headline: "Arizona immigrants move deeper into the shadows".  The story is about a Mexican born naturalized US citizen, who is married to an illegal alien, also a Mexican and their US born daughter.  In the context that the wife is an immigrant, I suppose the headline is technically correct, I still resent the title because only those who are here illegally or those who are aiding and abetting illegal aliens in their efforts to remain here illegally have to move deeper underground. Legal immigrants who are following the law have nothing to fear from SB 1070.

The summary of the story is that the wife fell in love with her husband to be and had already made plans to marry him when he revealed that he was in the US without permission.  Since then, they have been carefully controlling their daily and weekly activities to keep a low profile. They keep a neat yard. They dress nice. He works hard. They obey all other laws. They immaculately maintain their vehicle in order to avoid traffic stops. In other words, they sound like nice people. People that I would like as neighbors.

But, he is still here in violation of the law, and she is aiding and abetting him. Their daughter is growing up believing that her family are all US citizens, a lie.  One day, be it tomorrow or in ten years, he may be found out and when it happens, he will be deported with the inevitable result that their family will either be ripped apart or they will leave together to go to Mexico, where they will have far fewer opportunities.

This is the consequence breaking the law. He entered the country illegally, and she has supported and aided him ever since she found out that he was an illegal alien.  Until proven otherwise, the US and Arizona are both governed by laws, and justice must be blind when upholding it.  Either that, or we abandon the law. To do so would be, in my opinion, just as unjust if not more so to the millions of people that have become naturalized US citizens by following the law, or the hundreds of thousands more who continue to follow the law and are still patiently awaiting naturalized US citizen status.

The story is tragic. But it is not a tragedy of injustice. It is the tragedy of a nice little family that turned a blind eye with regards to immigration law and are both daily paying the price.  And potentially to pay the highest penalty for breaking it.

CNN's Reuben Navarette: American Flag wearers were "Disobedient Brats".

Reuben Navarette's article was in regards to the Live Oak High School incident where five students who wore American flag inspired clothing were ordered to reverse their t-shirts or be sent home for the day. The boys refused, recognizing that their clothing is an expression of political speech and therefore protected under the First Amendment.

The main point of Reuben's argument is that wearing the American flag at an American high school on May 5th is disruptive behavior. Cinco de Mayo is not even a US holiday, for crying out loud. How is wearing US national colors on any day of the year in school "disruptive"?  These boys were making a political point. "Celebrate your Mexican national roots but don't forget that you are Americans." Or should be, who knows today with so many illegal aliens from Mexico and Central America in our nation? 

He then cited three cases that came before the U.S. Supreme Court that upholds the right of school administration to restrict speech. However, his citations of case law is disingenuous and I'm disappointed.

In Bethel School District v Fraser (1986), the court upheld that schools have the right to uphold community standards and were right to stop a speech that was filled with sexual innuendo. This was not a political speech issue and therefore not protected to the same standard. 

Hazelwood v Kuhlmeier (1988) documents a case where Hazelwood School District was determined to be innocent of violating student's First Amendment rights when an article about teenage pregnancy and use/non-use of birth control was edited from a high school paper, again because the subject matter was deemed inappropriate for the younger class members of the school. Not a political expression issue, and therefore not protected to the same standard.

Morse v Frederick (2007) was a school speech case in which the Supreme Court that First Amendment does not prevent educators from suppressing student speech, even at school supervised events, that can be reasonably viewed to promote illegal drug abuse.

Hey Reuben, how about citing some case law that actually deals with freedom of expression of POLITICAL views? Your argument is pathetic and I, a non lawyer, was able to rip it to shreds in fifteen minutes of Google searches.

To sum up, these boys were expressing their POLITICAL views by wearing those shirts on May 5th and as long as the display of the national colors is in good taste the wearing of such colors should never be deemed disruptive.

Wind Power and the Threat of Eminent Domain

Wind Power and the Threat of Eminent Domain

No American citizen who turns on a TV, radio or reads the news can be unaware of the current push by the Obama Administration to fast track “green” energy projects. Further, in light of the questions raised by the possibility of man-caused global warming, it is prudent that we continue to develop these technologies. But a news item that I recently scanned causes me to be even more deeply concerned over the continued loss of individual freedom and abuse of government power for the “greater good”.

Most Americans are somewhat familiar with property rights. In rural areas, landowners not only own the surface of the land, but they also own the air above it and whatever is below it, all the way to the core of the earth (although for obvious practical reasons, nobody really enforces that ownership beyond man’s ability to reach downward into the earth’s crust). Simply put, if water, oil, natural gas are found under private land it belongs to the landowner and any company or city wanting to develop that resource must either buy the land or buy the rights to the resource from the landowner.

Similarly, if somebody were to build a structure near the property line that overhung private property, the landowner could force the owner of the structure to modify it so that it does not extend over his property.

Enter the city of New Ulm, Minnesota, which has proposed to construct a 237 acre, 8 megawatt wind farm. The city has already acquired the easements for the installation of the wind turbines. However, the State of Minnesota compels wind farm operators to obtain the “wind” rights from the landowners of a nearly equal amount of acreage in the direction of the prevailing winds. These landowners have so far refused to grant the easement, which has stalled the $16-18 million project.

The city of New Ulm has applied for a variance in order to proceed with the project without getting the easement from these recalcitrant landowners. If we were talking about water, this would be unthinkable. Instead, the developers of the project would be forced to buy the water rights from those that lived upstream to their project.

The New Ulm city attorney, Hugh Nierengarten, stated that “it will be necessary for the City of New Ulm to exercise its powers of eminent domain to secure such rights and move this vital project forward.”

The sticky wicket in this whole situation is the fact that the wind farm site isn’t located in the same county. This means that the objecting landowners have no way to hold the politicians and their legal representatives at bay. Jeff Franta, one of the farmers refusing to sign the easement and chief organizer of the opposition stated that it is within their right to refuse to grant easements to a project that could have a potential negative effect on the value of their property. He further stated “Wind rights are property rights like oil, water or a gravel pit. Wind is like oil in the sky so to speak. How can you use eminent domain to get something that can produce profit?”

The use of eminent domain is an important but volatile concept in American politics. Eminent domain gives a municipality the right to seize privately held land if the land will be used for "public use", and even then the landowner must be compensated fairly. This concept is based primarily on the following clause of the fifth amendment to the Constitution of the United States, which says: “…nor be deprived of life, liberty or property without the due process of law; nor shall private property be taken for public use, without just compensation.”

The most prominent recent case of eminent domain was Kelo vs. the City of New London, which was decided by the United State Supreme Court in June of 2005. The majority opinion, which decided in favor of the City of New London, chose to interpret the fifth amendment term “public use” to mean “public purpose”, citing the 1984 case of Hawaii Housing Authority v. Midkiff.

The dissenting opinion held that by using the “public purpose” interpretation this would enable a sort of reverse Robin Hood scheme whereby wealthy developers with political influence would be able to take property from the poor and middle-classes at below-market values. Further the distinction between private and public use of property would be so blurred as to effectively render inconsequential any protection provided by the fifth amendment with regards to usurpation by the government of private land rights.

To illustrate the difference, public use would imply the construction of a facility that would be run by the municipality that would be actually USED by the public. Examples include public schools and libraries, court buildings, city halls, and roadways. Public purpose has a much broader definition and implies any project that could benefit the public, usually financially. An example would be condemning a depressed urban area (homeowners) in order to develop an economic project (like a shopping mall or a factory) because it would bring increased tax revenues or provide new jobs, which would benefit the community (public purpose).

In conclusion, were the City of New Ulm to successfully either a) execute eminent domain on the farmers or b) get a waiver on the requirement to get the wind rights easement from the farmers, the City of New Ulm would then stand to profit from the new wind power farm while the farmers would derive no benefit as they do not live in the same county as the City of New Ulm.

Which leads me to ask two closing questions, the first of which is “Have you tried offering the farmers royalties or subsidies for the use of the wind that flows over their private property?” The second question would only need to be asked if the farmers lose their fight. “Will the Kennedy’s then be forced to accept the wind farm proposal on the Massachusetts coastline that they fought because it would ‘lower property values’?”