I'm from Missouri

This site is named for the famous statement of US Congressman Willard Duncan Vandiver from Missouri : "I`m from Missouri -- you'll have to show me." This site is dedicated to skepticism of official dogma in all subjects. Just-so stories are not accepted here. This is a site where controversial subjects such as evolution theory and the Holocaust may be freely debated.

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Location: Los Angeles, California, United States

My biggest motivation for creating my own blogs was to avoid the arbitrary censorship practiced by other blogs and various other Internet forums. Censorship will be avoided in my blogs -- there will be no deletion of comments, no closing of comment threads, no holding up of comments for moderation, and no commenter registration hassles. Comments containing nothing but insults and/or ad hominem attacks are discouraged. My non-response to a particular comment should not be interpreted as agreement, approval, or inability to answer.

Tuesday, December 01, 2009

Judge Jones' constitutional interpretation fails proposed "compelling reason" test

Judge "Jackass" Jones' "true religion" interpretation of the Constitution's establishment clause fails a new test that I am proposing, which I call the "compelling reason" test. I am defining this test as follows: when a constitutional interpretation cannot be derived explicitly or implicitly from the language of the Constitution, such an interpretation is valid only if it serves a truly compelling purpose. An example of such an interpretation is the prohibition on shouting "fire" in a crowded theatre -- such a prohibition is not explicit or implicit in the freedom of speech clause. I am using the word "interpretation" here very loosely, since the word usually means an explanation or clarification of the meanings of some words but here there are no words to interpret -- I am using the word "interpret" in the second sense given in the AOL's online dictionary: " 2. to conceive in the light of individual belief, judgment, or circumstance : construe." I also propose the following rules: (1) the "compelling reason" test should not be strictly applied to constitutional interpretations that are not used as the basis for a court decision, and (2) the test should apply only to general principles and not to how those principles apply to a specific situation (IMO there should be some allowance for differences of opinion as to how a "compelling reason" principle applies in a specific situation). I propose this "compelling reason" test for the purpose of helping to reduce arbitrariness, capriciousness, subjectivity, and general "activism" and "legislating from the bench" in judicial opinions. Judges are merely told that they should not be "activists" or should not "legislate from the bench," without being given a set of principles or guidelines that they should follow to avoid those things.

As I noted above, an example of a judicial principle that satisfies the "compelling reason" test is the famous prohibition on shouting "fire" in a crowded theatre. This prohibition cannot be expressly derived from the freedom of speech clause of the 1st amendment but is obviously necessary for compelling reasons. Another example of a judicial principle that satisfies the "compelling reason" test is the so-called "dormant commerce clause." The Constitution grants Congress the power to impose burdens on interstate commerce but does not expressly prohibit the states from imposing such burdens without the permission of Congress, so the courts, realizing that allowing states an unrestricted right to burden interstate commerce would result in chaos, invented a "dormant commerce clause" which denies such an unrestricted right. Another judicial principle of the courts allows -- for truly compelling reasons -- exceptions to the dormant commerce clause.

Judge Jones' "true religion" interpretation of the establishment clause fails this proposed test -- the interpretation cannot be derived from the language of the establishment clause, and there was no compelling reason for the interpretation, even if it is supposed that maintaining the separation of church and state is truly compelling. Judge Jones showed extreme prejudice against intelligent design and the Dover defendants by saying in a Dickinson College commencement speech that his Kitzmiller v. Dover decision was based on his cockamamie notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions [link]:

Ironically, but perhaps fittingly for my purposes today, we see the Founders' ideals quite clearly, among many places, in the Establishment Clause within the First Amendment to the United States Constitution. This of course was the clause that I determined the school board had violated in the Kitzmiller v. Dover case. While legal scholars will continue to debate the appropriate application of that clause to particular facts in individual cases, this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

Unfortunately, the original speech is no longer posted on the Dickinson College website.

Ironically, Judge Jones gave the speech while standing behind the Dickinson College seal, which was designed by USA Founders Benjamin Rush and John Dickinson and which contains a picture of an open bible and the college motto, in Latin, which translates, "religion and learning, the bulwark of liberty." Also, Judge Jones has claimed that the work of judges is "workmanlike," but there is nothing workmanlike about his "true religion" interpretation of the establishment clause.

Believe it or not, some trolls -- Kevin Vicklund and others -- claimed that I misinterpreted Judge Jones' above statement. But no statement could be clearer --"church" and "Bible" represent organized religions, and Judge Jones said that "true religion was not something handed down by a church or contained in a Bible." Under the principles of Social Darwinism, these trolls would be euthanized to protect themselves and others from the possible consequences of their own stupidity, or at least would be sterilized to prevent them from transmitting their mental defectiveness to future generations.

Law professor Robert Tsai, in a post on the Volokh Conspiracy blog, comments about his book Eloquence and Reason:

Because the text of the First Amendment has never changed, those interested in constitutional transformation have always used text instrumentally to secure a hegemony of preferred values, outlooks, and modes of talking about the provision. Whether insiders admit it or not, the task of judging involves sorting through competing claims to determine which cultural and political perspectives ought to be validated and which ones should be resisted. Judges have always played a role in this social process, even if theirs is rarely the last word on a subject. There is no such thing as neutral interpretation; there is only how transparent an interpreter chooses to be about her methodologies and substantive commitments.

"Eloquence and Reason" examines historical episodes in which activists, lawyers, and presidents such as FDR and Ronald Reagan worked to dislodge reigning constitutional ideas and reshape our understandings of free speech and religious freedom . . . .

A second episode has to do with the Anti-Establishment Clause. The “wall of separation” metaphor appeared as part of an official post-war strategy to keep the peace. As originally conceived, Justice Black’s version of the boundary idea conveyed liberalism’s commitment to equal respect, to the protection and empowerment of religious minorities, and to guaranteeing a strong state uncorrupted or divided by religious strife.

Over time, these connotations were consciously reconfigured through litigation, activism, and the electoral process. Through a process of composition, reaction, adaptation, and dissolution, the wall of separation began to acquire negative connotations. Those outside of the courts began to say that the wall signified hostility or discrimination, oppression of religious minorities, and a state weakened by the alienation of its citizens. Eventually judges endorsed this way of describing the wall of separation, shunning it as a trope and divorcing it from their analyses of the controversies that arose.

The title of the book, "Eloquence and Reason," is a misnomer -- what the book criticizes is not reasonable or eloquent (of course, it would be hard to be both unreasonable and eloquent).
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14 Comments:

Anonymous Garfunkle said...

Since you seem to fear comments on this topic perhaps you shouldn't have brought it up.

Friday, December 04, 2009 3:15:00 PM  
Blogger Larry Fafarman said...

>>>>>> Since you seem to fear comments on this topic perhaps you shouldn't have brought it up. <<<<<

Bozo, your comment is the first that I received on this topic.

Friday, December 04, 2009 9:02:00 PM  
Anonymous Anonymous said...

We believe you Larry;-)

Saturday, December 05, 2009 9:23:00 PM  
Anonymous Ernest said...

The "compelling reason" test flunks the sanity test

Monday, December 07, 2009 6:17:00 PM  
Blogger Larry Fafarman said...

Wrong, bozo. Judicial activism, "legislating from the bench," and arbitrary and capricious judicial decisions are things that flunk the sanity test. What flunks the sanity test is Jones' statement that his Dover decision was based on his cockamamie notion that the Founders' based the establishment clause upon a belief that organized religions are not "true" religions.

--I'm always kicking their butts -- that's why they don't like me.--
-- Gov. Arnold Schwarzenegger

Monday, December 07, 2009 8:50:00 PM  
Blogger Jan said...

Larry, if you really want free debate on your site, why do you feel you have to call a poster "bozo?"

Wednesday, December 09, 2009 4:22:00 PM  
Blogger Larry Fafarman said...

Because calling him "bozo" is part of free debate.

BTW, when a question mark is not part of the quote, the mark goes outside the quote marks.

Wednesday, December 09, 2009 8:16:00 PM  
Anonymous Whalin said...

> Because calling him "bozo" is part of free debate. <

But there is no free debate here. You gave that up long ago.

Wednesday, December 09, 2009 9:46:00 PM  
Anonymous Anonymous said...

The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry.

The above sentence does not mean that organized religions can't be true religions. It means that the source of a religious belief is irrelevant to whether it is true.

The FFs that advocated the First Amendment stated quite clearly that any religion that made claims that could not withstand free, rational inquiry was a false religion, even if it was an organized religion.

Thursday, December 10, 2009 11:46:00 PM  
Blogger Larry Fafarman said...

>>>>>>The above sentence does not mean that organized religions can't be true religions. It means that the source of a religious belief is irrelevant to whether it is true. <<<<<<<

I simply took what Judge Jones said at face value. And his statement simply cannot be derived from the words of the establishment clause, just as your above statement cannot be derived from his statement. And his statement does show extreme hostility towards intelligent design and the Dover defendants. He got so much flak over the statement that AFAIK he never repeated it.

Friday, December 11, 2009 7:32:00 AM  
Anonymous Tylises said...

> I simply took what Judge Jones said at face value. <

If you had done so there would not be a controversy. Instead you "interpteted" it.

> just as your above statement cannot be derived from his statement. <

It, like yours, is an interpretation. Perhaps a more defensible one.

> And his statement does show extreme hostility towards intelligent design and the Dover defendants. <

Hostility toward ignorance is not prejudice.

Saturday, December 12, 2009 6:27:00 AM  
Blogger Larry Fafarman said...

Tylises said,
>>>>>>>>>
> I simply took what Judge Jones said at face value. <

If you had done so there would not be a controversy. Instead you "interpteted" it.

> just as your above statement cannot be derived from his statement. <

It, like yours, is an interpretation. Perhaps a more defensible one.
>>>>>>>>>

So instead of wasting my time, why don't you try to show me that his interpretation can be defended, you lousy troll.

There is a big difference between an interpretation that merely paraphrases and an interpretation that pulls an irrelevant idea out of thin air. My interpretation of Judge Jones' statement is of the former type -- his interpretation of the establishment clause is of the latter type.

Even Fatheaded Ed Brayton brags that Baptists were among the biggest supporters of the establishment clause. Why would the Baptists support something that says, implies, or even suggests that their religion is not a "true" religion?

>>>>>> And his statement does show extreme hostility towards intelligent design and the Dover defendants. <

Hostility toward ignorance is not prejudice. <<<<<<

Wrong. The term "prejudice" of course means pre-judgment. Prejudice exists when someone prejudges something before gathering enough facts to determine whether or not it appears to represent ignorance. If one decides something represents ignorance after getting enough facts, then the issue of prejudice is irrelevant because there is no prejudgment. Duh.

Saturday, December 12, 2009 4:49:00 PM  
Anonymous Allity said...

> There is a big difference between an interpretation that merely paraphrases and an interpretation that pulls an irrelevant idea out of thin air. <

Unfortunately you fail to see which applies where.

> Why would the Baptists support something that says, implies, or even suggests that their religion is not a "true" religion? <

Perhaps because they can see that it, in fact, does not.

> Prejudice exists when someone prejudges something before gathering enough facts to determine whether or not it appears to represent ignorance. <

You are prejudging what facts he had available to him. He obviously saw the vacuity of the creationists' position.

Tuesday, December 15, 2009 10:25:00 PM  
Blogger Larry Fafarman said...

>>>>>> You are prejudging what facts he had available to him. <<<<<<<<

You stupid dunghill, I said that he made his judgment before he had the facts -- that is what prejudgment is. As for your other comments, they are also incredibly stupid.

Wednesday, December 16, 2009 7:42:00 PM  

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