Connecticut cancels Catholic Church control

posted at 4:10 pm on March 10, 2009 by Ed Morrissey

It’s remarkable what a little publicity can accomplish.  Take, for example, Connecticut lawmakers Mike Lawlor and Andrew McDonald, who pledged to support and defend the US Constitution as part of their public duties.  After their attempt to dictate the structure of the Catholic Church in Connecticut resulted in outrage and derision, they finally got around to reading the founding document:

Following the biggest political firestorm of the 2009 legislative session, a public hearing scheduled for Wednesday on the financial and administrative management of the Catholic Church has been canceled. The bill is dead for the rest of the legislative session.

As soon as word spread about the bill, the Legislative Office Building was flooded with telephone calls and e-mails on Monday. The bill, virtually overnight, became the hottest issue at the state Capitol.

The cancellation came less than 24 hours after Senate Republican John McKinney of Fairfield called for the cancellation, saying that his caucus was unanimously against the bill because they believe it is clearly unconstitutional.

It’s more than a belief.  The First Amendment makes that clear:

Congress shall make no law 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 peaceably to assemble, and to petition the Government for a redress of grievances.

After many people wondered aloud how Lawlor and McDonald managed to graduate their high-school civics class, they finally admitted that their bill to strip Catholic bishops of authority over parishes had, well, overreached — but they blamed Connecticut for their confusion:

For reasons that are unclear, Connecticut has had generations-old laws on the books singling out particular religions and treating them differently from other religions in our statutes.  That doesn’t seem right.

You’re just figuring that out?

In fact, many of our existing corporate laws dealing with particular religious groups appear to us to be unconstitutional under the rights guaranteed by the First Amendment of the U.S. Constitution. If that is correct, any changes to that law would likely also be unconstitutional.

No kidding!  And your solution was to expand those laws?

With that in mind, it would serve no useful purpose to have a conversation about changing the laws that govern existing Roman Catholic corporations until we know if any of these existing laws are constitutional.

Did it not occur to Lawlor and McDonald that legislating the structure of a religion is not a useful purpose for government at all, and not just when they’ve discovered that they goofed by expanding unenforced and unenforceable laws on their books?  In what way does the state of Connecticut have any “useful purpose” in designing church management structures?

They’re embarrassed, but they still haven’t learned why.  (via David Freddoso at The Corner, who scathingly refers to this as the Henry VIII Bill)  The Anchoress has more.

Update: Some in the comments say that Lawlor and McDonald only have to worry about the state constitution, not the federal Constitution.  I beg to differ — here’s the oath of office, emphasis mine:

You do solemnly swear (or affirm) that you will support the Constitution of the United States, and the Constitution of the State of Connecticut, so long as you continue a citizen thereof; and that you will faithfully discharge, according to law, the duties of the Office of State Representative to the best of your abilities; so help you God.

States cannot infringe on rights enumerated in the Constitution.  That explicitly includes the right to free speech, assembly, redress of grievances, bearing arms, protection against unreasonable search and seizure, and protection against self-incrimination, among others.  Any state law that infringes on these are unconstitutional and invalid.


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Comment pages: 1 2

1. Control of the church bill killed – check
2. Bailout II killed
3. Amnesty killed
4. Socialized medicine killed
5. Democrat defeat in 2010

One down, at least four to go

Vashta.Nerada on March 10, 2009 at 4:13 PM

Thanks Ed and all those who stopped this. One more for the 1st!
L

letget on March 10, 2009 at 4:14 PM

I don’t believe in a one-party state, but why is it that the Democrat Party even exists?

They are an incompetent, corrupt embarrassment to this great nation.

I don’t know how an organization so hopelessly and completely inept, exists and somehow thrives?

Even better, how do they manage to gather all of the worst possible candidates and get them elected?

Truly mystifying . . .

NoDonkey on March 10, 2009 at 4:15 PM

Not good enough, these people that had any part of this need to be out of office. This was a offense to our Constitution and the American people.

Maxx on March 10, 2009 at 4:16 PM

Vashta.Nerada on March 10, 2009 at 4:13 PM

6. Card check – defeat likelier day by day

Abby Adams on March 10, 2009 at 4:17 PM

Bush detaining captured on the battlefield out of uniform terrorists = shredding the Constitution.

Democrats ignoring the First (and Second) Amendments = “not our fault”

rbj on March 10, 2009 at 4:18 PM

What in world was their motivation for attempting this?

AubieJon on March 10, 2009 at 4:18 PM

So, is it still too Early & Extreme for the Hitler & Mussolini comparisons?

The Demos are following the Nazi & Fascisti playbooks, with more NUANCE

Sometimes in the plains states, people will just say to you, “Front’s coming”. You’re supposta know what that means and what to do in preparation: go home, take clothes off the line, etc.

Front’s coming…………

Janos Hunyadi on March 10, 2009 at 4:18 PM

The Constitution gets in the way of the libs again…

DamnYankee on March 10, 2009 at 4:18 PM

This is good news.

Exit question: What would Henry VIII think?

shick on March 10, 2009 at 4:18 PM

The Connecticut legislature is not the US Congress.. What does the Connecticut Constitution say about such things?

Sheerq on March 10, 2009 at 4:19 PM

“After many people wondered aloud how Lawlor and McDonald managed to graduate their high-school civics class, they finally admitted that their bill to strip Catholic bishops of authority over parishes had, well, overreached — but they blamed Connecticut for their confusion”

As far as I can tell, this is Lawlor’s and McDonald’s second defense. IIRC, their first defense was the Trooferistic, “We were just offering bills!”

These two are a continuing danger to all who understand the liberty explained, not granted, in the Constitution and ought to be removed from office.

Dusty on March 10, 2009 at 4:21 PM

I don’t believe in a one-party state, but why is it that the Democrat Party even exists?

They are an incompetent, corrupt embarrassment to this great nation.

I don’t know how an organization so hopelessly and completely inept, exists and somehow thrives?

Even better, how do they manage to gather all of the worst possible candidates and get them elected?

Truly mystifying . . .

NoDonkey on March 10, 2009 at 4:15 PM

Because, at times, the GOP is worse.

LastRick on March 10, 2009 at 4:22 PM

The Connecticut legislature is not the US Congress.. What does the Connecticut Constitution say about such things?

Sheerq on March 10, 2009 at 4:19 PM

I’m pretty sure state Constitutions can’t violate the US Constitution.

ladyingray on March 10, 2009 at 4:22 PM

Pure liberal genius on display

neuquenguy on March 10, 2009 at 4:23 PM

rbj on March 10, 2009 at 4:18 PM, so true!

DanMan on March 10, 2009 at 4:24 PM

Sheerq on March 10, 2009 at 4:19 PM

SEC. 3. The exercise and enjoyment of religious profession and worship, without discrimination, shall forever be free to all persons in the state; provided, that the right hereby declared and established, shall not be so construed as to excuse acts of licentiousness, or to justify practices inconsistent with the peace and safety of the state.

But I also believe that ladyingray is correct, and that state constitutions cannot supersede the federal constitution.

Farmer_Joe on March 10, 2009 at 4:24 PM

I need to pass a drivers class to get a license…a real estate exam to sell real estate…of course the bar to practice law…maybe a civic exam before anyone can be a politician…at least know and learn the 27 amendments, 1,2, and 10 are good ones to study…

right2bright on March 10, 2009 at 4:25 PM

What in world was their motivation for attempting this?

AubieJon on March 10, 2009 at 4:18 PM

One possibility: Catholic antipathy unabated by colossal idiocy.

neuquenguy on March 10, 2009 at 4:25 PM

What in world was their motivation for attempting this?
AubieJon on March 10, 2009 at 4:18 PM

The RCC has finally started to speak out against politicians, most of whom happen to be democrats, who are distorting Church teaching to explain away their immoral positions on life issues. That represents quite a threat to democrats, particularly in heavily Catholic areas like the Northeast.

Y-not on March 10, 2009 at 4:25 PM

The Connecticut legislature is not the US Congress.. What does the Connecticut Constitution say about such things?

Sheerq on March 10, 2009 at 4:19 PM

Amendment X…

right2bright on March 10, 2009 at 4:26 PM

For reasons that are unclear, Connecticut has had generations-old laws on the books singling out particular religions and treating them differently from other religions in our statutes. That doesn’t seem right.

Something tells me they’re going to regret opening this can of worms… Anyone want to guess how long it’s going to take for one of those “particular religions” to challenge the Constitutionality of those age old laws in court?

jasetaro on March 10, 2009 at 4:26 PM

I’m pretty sure state Constitutions can’t violate the US Constitution.

ladyingray on March 10, 2009 at 4:22 PM

That would be the Supremacy Clause:

Article. VI.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

LastRick on March 10, 2009 at 4:28 PM

What in world was their motivation for attempting this?

AubieJon on March 10, 2009 at 4:18 PM

Liberals do not, I repeat, do not understand religion, they think it is a hobby or just something people do on Sunday, like going to a nice restaurant…they don’t understand the full meaning of a faithful life.
They never grasp that people will willingly lay down their lives to save their faith, that sort of belief is beyond their petty minds.

right2bright on March 10, 2009 at 4:28 PM

“Who will rid me of these troublesome priests?”

Cicero43 on March 10, 2009 at 4:28 PM

They must have wondered why people keep polling black and female citzens for their voting preference…after all if they didn’t read past the 1st Amendment, they certainly couldn’t have read far enough down the list to get to the part where black people and women have the right to vote.

DrAllecon on March 10, 2009 at 4:29 PM

“Sheerq”

I don’t have an answer to that, however…unless Connecticut has been annexed by Iran or North Korea, it seems to me that the question is ‘moot’.

JoeySlippers on March 10, 2009 at 4:29 PM

Thank Christ.

johnnyU on March 10, 2009 at 4:30 PM

I need to pass a drivers class to get a license…a real estate exam to sell real estate…of course the bar to practice law…maybe a civic exam before anyone can be a politician…at least know and learn the 27 amendments, 1,2, and 10 are good ones to study…

right2bright on March 10, 2009 at 4:25 PM

Unfortunately, the first qualification for office is fundraising.

dedalus on March 10, 2009 at 4:30 PM

Amendment X…

right2bright on March 10, 2009 at 4:26 PM

The Tenth Amendment deals with those things not explicitly covered by The Constitution. This is, as I said above, covered in Article VI.

LastRick on March 10, 2009 at 4:30 PM

The Connecticut legislature is not the US Congress.. What does the Connecticut Constitution say about such things?

ART. 1 SEC. 3. The exercise and enjoyment of religious profession and worship, without discrimination, shall forever be free to all persons in the state; provided, that the right hereby declared and established, shall not be so construed as to excuse acts of licentiousness, or to justify practices inconsistent with the peace and safety of the state.

jasetaro on March 10, 2009 at 4:31 PM

Out of the ashes comes a glimmer of hope…

Good job Ed!

Keemo on March 10, 2009 at 4:33 PM

I don’t believe in a one-party state, but why is it that the Democrat Party even exists?

They are an incompetent, corrupt embarrassment to this great nation.

I don’t know how an organization so hopelessly and completely inept, exists and somehow thrives?

Even better, how do they manage to gather all of the worst possible candidates and get them elected?

Truly mystifying . . .

NoDonkey on March 10, 2009 at 4:15 PM

It is the party of losers, of perpetual victims, of those that live by the credo “misery loves company”. The party of the fat kids that got picked last for the dodgeball team in gym, the party of coffee shop pseudo-intellectuals and angsty know nothing college turds, and those “I need to feel good when I go to bed at night at how open minded I am” queefs.

I hope I didn’t sugar coat that so much my point was lost…

Sugarbuzz on March 10, 2009 at 4:34 PM

Earlier in the day Lawlor and MacDonald were saying they were misunderstood and never supported this bill. Their goose was cooked and they knew it.

ctmom on March 10, 2009 at 4:35 PM

Guess my question would be — if they figured out what they were proposing was unconstitutional why not turn vinegar into wine and offer up the slotted session for repeal of all other laws of this type on the books? Hey these guys are so dense they don’t even know how to do a legislative pivot.

Dr. Dog on March 10, 2009 at 4:36 PM

They never grasp that people will willingly lay down their lives to save their faith, that sort of belief is beyond their petty minds.

right2bright on March 10, 2009 at 4:28 PM

Very true. This is why I believe that those who think that churches will bow down to FOCA are making a fundamental miscalculation. Liberal politicians will need to be a lot more crafty than this on that fight. It will probably end up buried in another porkulous bill which nobody will be given time to read.

neuquenguy on March 10, 2009 at 4:36 PM

Unfortunately, the first qualification for office is fundraising.

dedalus on March 10, 2009 at 4:30 PM

That’s the problem.

Our politicians are ambitious, well-connected, wealthy individuals who are good at fund raising and at navigating the wickets necessary to pass legislation they haven’t bothered to read.

Unfortunately, that’s the limit of their skill sets. That’s why all their legislation sucks, it’s written by their donors and interest groups for the benefit of their donors and interest groups, not the American people.

NoDonkey on March 10, 2009 at 4:36 PM

Ed,

You are the voice of sanity on Hot Air, so I hate to disagree with you, but here goes.

Speaking as an attorney who is an originalist, take a good look at the words in the first amendment – “Congress shall pass no law”. At the time of ratification, several US states had official, established religions, Connecticut included. The amendment was not intended to establish a “wall of separation”; rather, that clause was yet another phrase in the Bill of Rights that was written to protect the states from the federal government. The US supreme court has turned that logic on its head, using the 14th amendment to incorporate everything in the bill of rights written to protect states as a weapon against them.

That said, the proposed bill was politically very stupid, even in the ultra-liberal northeast. It deserved to die a fiery death. But the rationale for its death should not be yet another misinterpretation of the Constitution.

Phildorex on March 10, 2009 at 4:39 PM

The SCOTUS has ruled that the 1st Amendment applies to all of the states regardless of the state’s constituion. But even an obvious unconstituional law is still constituional until challenged. Under the White and Taft Courts (1910–1930), the substantive due process doctrine reached its first apogee (Adkins v. Children’s Hospital), and the Court held that the Fourteenth Amendment applied some provisions of the Bill of Rights to the states through the Incorporation doctrine.

amr on March 10, 2009 at 4:40 PM

Now, if we can only get “Global Warming/Climate Change” declared a religion……….

………. then we can remove Government from it once and for all.

Seven Percent Solution on March 10, 2009 at 4:40 PM

Our politicians are ambitious, well-connected, wealthy individuals who are good at fund raising and at navigating the wickets necessary to pass legislation they haven’t bothered to read.

Unfortunately, that’s the limit of their skill sets. That’s why all their legislation sucks, it’s written by their donors and interest groups for the benefit of their donors and interest groups, not the American people.

NoDonkey on March 10, 2009 at 4:36 PM

So what’s the solution? Those citizens who may be better “qualified” to serve as politicians, who may be better versed in the Constitution and law, are probably the ones that don’t want to serve. Because it’s more profitable as a private employee or because they hate the sausage-making process or because they don’t want to expose their family, etc. Eventually, it ends up that those that enter politics aren’t necessarily our best representative.

How do you fix it? In the days of our Founding Fathers, the best and brightest were probably drawn to politics because of a call to serve and the fact that being a lawyer or doctor didn’t guarantee a six-figure salary. Those days are gone.

LastRick on March 10, 2009 at 4:44 PM

Which is why this silly notion of Separation of Church and State, like can’t say the pledge in school, or pray or mention God period, or have a cross or any symbol on “public” property is against the 1st Amendment.
Congress shall make no law 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 peaceably to assemble, and to petition the Government for a redress of grievances.

Granted the government can’t force people to pray or to say the pledge, but their over reach on stopping people to pray or post the ten commandments etc is against the constitution.

Conservative Voice on March 10, 2009 at 4:44 PM

Well, jeeze…….the idiots woke up?

LOL*

Funny follow-up.

On a similar funny story note, Arkansas legislature once voted to eliminate all those “ridiculous” decimal points in PI.

true story

AnninCA on March 10, 2009 at 4:45 PM

Guess my question would be — if they figured out what they were proposing was unconstitutional why not turn vinegar into wine and offer up the slotted session for repeal of all other laws of this type on the books?

Dr. Dog on March 10, 2009 at 4:36 PM

Congress willing to take laws off the books?
A childish, unrealistic, occasional dream of mine: would that the constitution had a hard limit on the number of laws congress can enact. For every new law, these geniuses would have to figure out which old law to derogate. I know…it’s stupid fantasy day at the neuquenguy ranch.

neuquenguy on March 10, 2009 at 4:45 PM

I hope I didn’t sugar coat that so much my point was lost…

[Sugarbuzz on March 10, 2009 at 4:34 PM]

LOL.

Dusty on March 10, 2009 at 4:46 PM

So, the fact that it says “Congress shall make no law” means the states can’t either? Upholding the Constitution doesn’t mean adding things to it that aren’t there. That said, it was still an idiot idea.

Buford Gooch on March 10, 2009 at 4:47 PM

How do you fix it? In the days of our Founding Fathers, the best and brightest were probably drawn to politics because of a call to serve and the fact that being a lawyer or doctor didn’t guarantee a six-figure salary. Those days are gone.

LastRick on March 10, 2009 at 4:44 PM

“A Republic, if you can keep it”

neuquenguy on March 10, 2009 at 4:49 PM

A blow to BO’s culture war.

getalife on March 10, 2009 at 4:52 PM

What in world was their motivation for attempting this?

AubieJon on March 10, 2009 at 4:18 PM

You mean their excuse? Something about a parishioner claiming to have been defrauded out of money she put in a collection plate or something.

Tuning Spork on March 10, 2009 at 4:53 PM

Phildorex on March 10, 2009 at 4:39 PM

Thanks for bringing this up. I was thinking along the same lines, but got thrown off when Article VI of the constituiuon was brought forward by

LastRick on March 10, 2009 at 4:28 PM

One of the best ways to know the founders intent is to know the laws that existed at the time of the adoption of our constitution. I agree with you that this law is federally constitutional, but have no idea if it is constitutional at the state level (and do not care since I do not live there).

WashJeff on March 10, 2009 at 5:00 PM

The US supreme court has turned that logic on its head, using the 14th amendment to incorporate everything in the bill of rights written to protect states as a weapon against them.

It deserved to die a fiery death. But the rationale for its death should not be yet another misinterpretation of the Constitution.

Phildorex on March 10, 2009 at 4:39 PM

Phildorex, I don’t think that the Supreme Court is misreading the 14th amendment when they say that U.S. Constitutional rights are protected from abridgement by the states. The meaning seems pretty clear:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

This is not written to protect states from federal tyranny, but to protect individuals from state tyranny. How else could you read that?

Tuning Spork on March 10, 2009 at 5:01 PM

John Bingham, the author of the Fourteenth Amendment, intended for it to incorporate the first eight Amendments into the Fourteenth through the “privileges or immunities” clause and apply it to the States. Problem is that the Supremes misinterpreted the Fourteenth to have incorporation through the “due process” clause. That said, the bottom line is that the Bill of Rights apply to the States as much as it applies to the Fed.

NorthernCross on March 10, 2009 at 5:07 PM

Sometimes it’s hard being a Catholic.

I mean, this kind of nonsense makes me want to break a few of the Commandments.

Thank goodness for inner peace. Otherwise, I’d drive my unemployed ass up there and break them off a piece of ass-kicking.

madmonkphotog on March 10, 2009 at 5:10 PM

Uh… folks…

The state of Conneticut HAD a STATE Religion until a generation AFGTER the Constitution was signed.

Thus the Founders felt this prohibition was on the Federal Congress… as they wrote it.

They were pretty smart guys back then… and they WROTE it that way for a reason…

Just like the “Natural Born Citizen” clause for President. It was put there for good reason… to bad we don’t bother with the origional intent, or words, anymore.

Romeo13 on March 10, 2009 at 5:13 PM

The Tenth Amendment deals with those things not explicitly covered by The Constitution. This is, as I said above, covered in Article VI.

LastRick on March 10, 2009 at 4:30 PM

Great, I will take Amendment I and X, just as easily.
Regardless, it just shows that there is more then one way to determine what they were doing was unconstitutional.
They were doubly stupid…

right2bright on March 10, 2009 at 5:16 PM

Romeo13 on March 10, 2009 at 5:13 PM

You’re right, the States did have their own official religions right after the Constitution was ratified. That’s also irrelevant, since the Fourteenth Amendment made that illegal about a century later.

NorthernCross on March 10, 2009 at 5:19 PM

We all need to brush up on the notion of federalism. I read the Constitution’s “…Congress shall make no law…” as meaning that the restriction is on the federal government and not on state legislatures.

The age old question is whether the US Constitution is a floor or a ceiling for state legislatures? or both? or neither?

We the people and our state governments have ceded and continue to cede too much power to the federal government. If we don’t live to regret the next generation certainly will.

Sheerq on March 10, 2009 at 5:25 PM

Sheerq on March 10, 2009 at 5:25 PM

The Fourteenth Amendment changed the meaning of the Bill of Rights so that it’s no longer a limit of Federal power only. I understand that we all want strict constructionist interpretations here, but we have to remember that strict constructionism, as a legal approach, must always takes into account the effect of Amendments to the Constitution.

NorthernCross on March 10, 2009 at 5:29 PM

BTW, for all those who think that the States should be allowed to act unimpeded in the face of the Bill of Rights, I’m curious about how you’ll react the next time your State Legislature tries to take your gun away.

NorthernCross on March 10, 2009 at 5:34 PM

Sheerq,

The 14 amendment expands and ensures the Bill of Rights applies throughout the states. It’s not an expansion of federal powers, but a restriction on state powers in the interests of individuals rights.

It’s also interesting to note that the term “federalist” is used a bit ironically these days. Originally, it denoted a support of a stronger federal government in the era of the loose confedracy. Nowadays, a self-described “federalist” supports the limiting of federal powers. Just a side note.

Tuning Spork on March 10, 2009 at 5:41 PM

Congress shall make no law 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 peaceably to assemble, and to petition the Government for a redress of grievances.

Intersting… Religion is still a Constitutional right…

But Free Speech? Look at Hate Speech Laws…

Press still prints SECRETS (NYT anyway)…

But Peaceable assembly went out once they decided that “Free Speech Zones” were OK…

And to Petition for REDRESS? No such animal when you can’t sue the Government for not doing their job(Border enforcement?)…

Notice that the two Rights enumerated having to do with Institutions are still pretty unlimited Rights… while the ones having to do with an INDIVIDUALs Rights have been limited?

Romeo13 on March 10, 2009 at 5:50 PM

I live in CT, and local morning talk-show host Brad Davis was discussing this over the past several mornings, urging his listeners to bombard the State Capitol with messages. Apparently, his efforts paid off.

Davis also mentioned that, even after ratifying the U.S. Constitution, Connecticut had a clause in its own state constitution denying freedom of worship to Catholics until 1818.

Score one for the Catholics of Connecticut, but we’ve got a long way to go–same-sex “civil unions” were voted into law, and signed by a REPUBLICAN Governor.

Besides, the Catholic Church in this state has been somewhat politicized by liberals, including some priests, who joined in protest of the Iraq war, and parishioners in my parish are urged to go on “retreats” to a nearby monastery, whose leaders push liberal politics on gullible parishioners, and a young man born in the 1980′s tells flagrant lies about the purpose and results of the Second Vatican Council, which took place in the early 1960′s.

The Catholic Church here needs a new awakening, and maybe this “scare” might finally awake the sleepers to the dangers we face.

Steve Z on March 10, 2009 at 5:54 PM

“Speaking as an attorney who is an originalist”
Phildorex on March 10, 2009 at 4:39 PM

I fancy myself an armchair originalist too. Just re-read Amendment I. And, I think your interpretation makes a lot of sense. Thanks for the insight.

“The Fourteenth Amendment changed the meaning of the Bill of Rights so that it’s no longer a limit of Federal power only.”
NorthernCross on March 10, 2009 at 5:29 PM

I’ll admit to being a tyro. I just re-read Amendment XIV. I am not sure how it changed the meaning of the Bill of Rights and specifically Amendment I. Are you referring to the “equal protection” clause? Any insights from you or others would be appreciated.

“to bad we don’t bother with the origional intent, or words, anymore.”
Romeo13 on March 10, 2009 at 5:13 PM

“One of the best ways to know the founders intent”
WashJeff on March 10, 2009 at 5:00 PM

Once again, with the caveat that I am a neophyte in these matters, I believe that we have to be extremely careful about using “original intent” as our underlying theory of jurisprudence. Justice Scalia has eviscerated it and has argued for the use of “original meaning.” I find his arguments quite convincing. Also “original meaning” is an easier quality or quarry to grasp and the adoption of it makes it more difficult for justices or citizen interpreters to follow flights of fancy.

bravecowboy on March 10, 2009 at 5:55 PM

Well, as the saying goes, opinions are like assholes, everyone has one. Ed, and the Conn. pols who canceled this silly bill, are all wrong on the first amendment. However, what I say about it, though right, is also a losing argument at this moment since currently our democratic republic is at the mercy of the tyranny of five people on a single court. It was with this knowledge that I mentioned the fourteenth amendment in my original post, since “incorporation” is one of the flavors of the month for aggresive federal action against the states, just as the commerce clause was until very recently. The fourteenth amendment was written for a very simple reason, to protect former slaves from onerous laws that threatened to take away their newly won freedoms.

The fourteenth amendment sat dormant for decades until judicial activists realized it could be used to assert more federal power over the states. The first instance that it was used concerning the establishment clause, I believe, was 1947, eight decades after the amendment was enacted.

So yes, those of you who worship at the alter of “SCOTUS” and the fourteenth amendment, you are technically correct that the 14th makes the clear language of the first amendment irrelevent. But your argument is in support of judicial tyranny. Do any of you disagree with Roe v. Wade, which defined the unborn as not “persons”, thus relying on the same logic as the Dred Scott decision? How about Kelo, which eliminated private property rights in this country?

As for the one genius who threw the second amendment at me, take a look at the language:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

No mention of Congress here – it is an individual right held by the people, beyond the reach of Congress or any state.

Phildorex on March 10, 2009 at 6:19 PM

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

No mention of Congress here – it is an individual right held by the people, beyond the reach of Congress or any state.

Phildorex on March 10, 2009 at 6:19 PM

Shall not be infringed by whom? Even the strictest of strict constructionists have to admit that you need more than the “four corners” of the Second Amendment to understand who it refers to. The only way to understand the Second Amendment’s original meaning is to put it into its historical context, which was that it was ratified as part of a series of constitutional provisions to keep the Fed from becoming a distant tyrant imposing its will throughout the Several States.

However, what I say about it, though right, is also a losing argument at this moment since currently our democratic republic is at the mercy of the tyranny of five people on a single court. It was with this knowledge that I mentioned the fourteenth amendment in my original post, since “incorporation” is one of the flavors of the month for aggresive federal action against the states, just as the commerce clause was until very recently. The fourteenth amendment was written for a very simple reason, to protect former slaves from onerous laws that threatened to take away their newly won freedoms.

That’s true to a point. Are you aware that before the Civil War, one of the ways the South fought against the Abolitionists was to prevent them from publicly spreading their beliefs from the North? And did you know that the Abolitionist movement was highly religious in nature, and that the struggle against slavery was a spiritual struggle as well as a political one? There’s a reason why incorporation was in John Bingham’s mind when he authored the Fourteenth Amendment.

NorthernCross on March 10, 2009 at 6:36 PM

Sheerq on March 10, 2009 at 5:25 PM

You bring up valid questions, which are, in my opinion, now moot. The founding fathers had no way of forecasting the extent to which this country, nor technology, has grown. As such, to the vast majority of average citizens, states are just lines on a map, or where those “damn yankees” or “dumba#$ rednecks” or (insert invective du jour) live. The federal government has voted itself so much power, (and correspondingly diluted state power) that it has turned into the very Juggernaut that our forefathers predicted, feared, and tried to protect us from creating.

And we have allowed it to happen. There are no men left in this country willing to stand up to the excesses of the current version of lawlessness that bears the name of the US government. Or perhaps there are such men willing, but they are all asking of themselves the same question: “When is someone going to show up and tell me what to do?” I readily admit to having zero large group leadership skills and would have to admit that very lack makes me just as bad as all the rest who are waiting for their “epiphany”.

My, my, I do get philosophical and long-winded. I’ll shut up for now.

TASS71 on March 10, 2009 at 6:41 PM

My local Congestitute, Ron Kind (D, WI 3rd), proud Vice-Chairman of the “moderate, pro-growth New Democrat Coalition” (how can five separate words become a single oxymoron?) has already voted FOR Card Check in Madame Pelosi’s House of Ill-Repute.

Given our Lord Feingold and Lady Kohl (aka ‘Dairy Queen’), the Demoncrap Party can put the People’s State of Wisconsin in the ‘FOR’ column.

SeniorD on March 10, 2009 at 6:47 PM

[Note: Tried to post this earlier--don't think it worked]

1. I join Ed and others in celebrating these lawmakers’ changes of heart.

2. I lament that our collective understanding of the federal constitution is sorely lacking. Thank you, public schools!

Yes, the Supremacy Clause declares the federal constitution to be the supreme law of the land. It does not, however, declare that decisions of the Supreme Court of the United States are the supreme law of the land or otherwise render unto this elitist body the exclusive right to tell us what the constitution says.

The Supremacy Clause existed long before the Fourteenth Amendment, as did–obviously–the Tenth Amendment, which merely sets forth the jist of the Supremacy Clause, but in the negative: that the power of the several States begins immediately where the power of the federal government ends, as this power is defined and limited by the federal constitution itself.

Nevertheless, the Supremacy Clause has never–I repeat, never–been interpreted as applying the Bill of Rights against the States. In fact, even the pointy-nosed elitists appointed to SCOTUS did not derive such a meaning from that clause.

Rather, SCOTUS applied the Bill of Rights to the States by operation of the Due Process Clause of the Fourteenth Amendment, which was ratified (at gunpoint) after the Civil War. This makes absolutely no sense, and even many constitutional “scholars” agree that the better basis for such incorporation would have been the Privileges and Immunities Clause of the Fourteenth Amendment. Alas, SCOTUS early on rejected that P&I triggered the incorporation, leading later Jurists of the Court to fudge Due Process a bit. (The same fudging helped create the awful line of “Substantive Due Process” cases which eventually evolved and twisted into emanations from penumbras–and, in turn, Roe v. Wade.)

So, anyhow, Fourteenth Amendment Due Process, which is nearly identical to Fifth Amendment Due Process, curiously operates to foist upon the States most of the first ten amendments. Never mind that such a dramatic and consequential surrender of power ought to have been made explicit in order to be considered a voluntary surrender of state sovereignty. Otherwise, who do these vacuous, pompous meatheads in Washington think they are to deprive the states of their sovereignty?

3. To Ed’s points, specifically, I reply:

States cannot infringe on rights enumerated in the Constitution. That explicitly includes the right to free speech, assembly, redress of grievances, bearing arms, protection against unreasonable search and seizure, and protection against self-incrimination, among others. Any state law that infringes on these are unconstitutional and invalid.

Ed, the rights enumerated in the First Amendment could only invalidate acts of Congress originally. Please specify, exactly, your basis for deriving such rights, vis-a-vis the states, from the federal constitution.

And, yes, these lawmakers may swear to uphold the federal constitution, but that does not answer the question of “on what basis do the citizens of Connecticut have the power to assert their religious liberty against laws passed by their state’s legislature?”

4. Since my initial attempt at posting this, a good discussion has arisen re: Second Amendment incorporation.

As for the one genius who threw the second amendment at me, take a look at the language:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

No mention of Congress here – it is an individual right held by the people, beyond the reach of Congress or any state.

I must admit the point made here, that the language of this amendment differs from the first, is fairly good–though the distinction is not widely accepted as giving it a different meaning or effect. Funny enough, following on the heels of the D.C. gun case, we may actually have SCOTUS ruling for the first time ever on the question of whether the Second Amendment is incorporated by Fourteenth Amendment Due Process. Imagine D.C. liberals taking so long to make this happen . . . hmmm . . . .

I have to go back, though, to the prevailing antebellum wisdom (i.e., before the Fourteenth Amendment), which was that the entire Bill of Rights is effective against the feds, not the States.

Think about it from a broader perspective: why would the document which represents a contractual agreement between the States have conferred rights of State citizens against the States? The contract was, instead, one in which the States surrendered a specific amount of sovereignty to the collective United States in return for the benefits of forming such a union. And it was an agreement struck with some wariness at not waiving too much sovereignty all the while.

Only with our modern, “democratic” (not Republican) every-man-for-himself mentality have we managed to twist the federal constitution around to better suit our preferences.

Long live the Republic! United Socialist States of ameRika!

cackcon on March 10, 2009 at 7:17 PM

Oh, and I forgot to re-state the point I made in the comments to Ed’s previous post: section 3 (I believe) of Connecticut’s constitution is expressly opposed to what these lawmakers were attempting to do.

(Not that our nation’s legislators care one bit about whether the laws they pass are constitutional, of course. *Cough* D.C. “voting rights” *Cough*)

cackcon on March 10, 2009 at 7:23 PM

If anything, this entire venture — short-lived as it was — shows what measures the Gay-stapo is ready to resort to in order to accomplish its goals. As a lifelong San Francisco resident, I already know. But the rest of the country has to pay attention.

L.N. Smithee on March 10, 2009 at 7:38 PM

Unfortunately, that’s the limit of their skill sets. That’s why all their legislation sucks, it’s written by their donors and interest groups for the benefit of their donors and interest groups, not the American people.

NoDonkey on March 10, 2009 at 4:36 PM

Yeah, why bother to draft (or even read) the legislation when you can just cut & paste from what the lobbyist sent you. The Dems are worse offenders at this than the GOP. Maybe they’ll shoot themselves in the foot quickly, in time for 2010 and 2012.

dedalus on March 10, 2009 at 7:51 PM

If anything, this entire venture — short-lived as it was — shows what measures the Gay-stapo is ready to resort to in order to accomplish its goals. As a lifelong San Francisco resident, I already know. But the rest of the country has to pay attention.

L.N. Smithee on March 10, 2009 at 7:38 PM

It also highlights the significant protection churches have based on the First Amendment.

dedalus on March 10, 2009 at 7:54 PM

Phildorex on March 10, 2009 at 4:39 PM

Phildorex on March 10, 2009 at 6:19 PM

Mr. Phildorex, what do you think of the reasoning and case citings in Amar Akhil Reed’s book “The Bill of Rights: Creation and Reconstruction”? He seems to have a plethora of cases which illustrate right out of the gate the intent and meaning of the 14th Amendment.

As an “originalist” you should definitely be aware that each Amendment requires a reinterpretation of the Constitution in the light of the framers of the Amendment itself. The arguments by the Radical Republicans during the debate for the Amendment are clear — the Amendment is intended to extend the restriction of powers by the Bill of Rights to each State and not just to the Federal Government, as had been the case since Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833). In fact, debate by the framers of the 14th Amendment clearly repudiate Barron. Hence, any reasoning which depends on the intent of the Founders is faulty on its face, given the complete overhaul of major portions of the Constitution performed in the 1860′s.

You may not like those amendments, and you may choose to overlook precedent between 1860 and 1940 (at least one case of which [from 1879] I cited over a day ago in my comment here to Ed’s original post on this matter), but you cannot ignore what the Supremes have stated from 1940 on (a date you use as a seachange in law in your own comment).

Constitutional arguments paralleling or citing Barron are outmoded right out of the gate and guarantee you a defeat before the Supremes. Stare decisis no longer includes Barron.

unclesmrgol on March 10, 2009 at 8:19 PM

My statement

Hence, any reasoning which depends on the intent of the Founders is faulty on its face…

is incorrect; the correct phrasing is

Hence, any reasoning which depends solely on the intent of the Founders is faulty on its face…”

unclesmrgol on March 10, 2009 at 8:32 PM

It’s more than a belief. The First Amendment makes that clear:

Congress shall make no law 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 peaceably to assemble, and to petition the Government for a redress of grievances.

While, I think the law is BS, I also know that the First Amendment doesn’t apply to the states. It only started applying in a BS ruling by the Federal Supreme Tyrants Court.

While we deny that Congress have a right to controul the freedom of the press, we have ever asserted the rights of the states, and their exclusive right, to do so. -Thomas Jefferson letter to Abigail Adams, September 11, 1804

Tim Burton on March 10, 2009 at 8:48 PM

Ed, the rights enumerated in the First Amendment could only invalidate acts of Congress originally. Please specify, exactly, your basis for deriving such rights, vis-a-vis the states, from the federal constitution.

cackcon on March 10, 2009 at 7:17 PM

I’ll help Ed out here. Federal laws originate in Congress. Since all Federal law must be enacted via an Act of Congress, the First Amendment clearly covers acts by all branches of the Federal Government (since the Executive cannot enforce laws not enacted, and the Supreme Court cannot decide the Constitutionality of laws not enacted). If Congress does enact a law violating the First Amendment, then the Executive is obligated to veto it. If the executive signs, or his veto is overridden, then the Court must find such a law unconstitutional.

That is obviously the intent of the framers of the First Amendment.

So far you should agree with everything above, since it deals solely with the Federal Government.

Now, examine Section 1 of the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Notice that the object of the bolded portion of text is citizens of the United States. Not citizens of the State wherein they reside, but citizens of the United States.

Now, what are the rights of a citizen of the United States? They are enumerated in the Bill of Rights. This Amendment therefore requires the separate States to guarantee the same rights that the United States Government itself is obligated to guarantee.

Now, returning to Amendment I (First Amendment), what is the obligation of Connecticut with regard to guaranteeing religious freedom?

unclesmrgol on March 10, 2009 at 8:50 PM

That said, the proposed bill was politically very stupid, even in the ultra-liberal northeast. It deserved to die a fiery death. But the rationale for its death should not be yet another misinterpretation of the Constitution.

Phildorex on March 10, 2009 at 4:39 PM

Well said. Glad someone knows their Constitution besides Mark Levin and me. ;-)

Tim Burton on March 10, 2009 at 8:52 PM

While incredibly stupid, this bill doesn’t violate the US Constitution. The 1st Amendment says that Congress (Federal) cannot make those laws.

If the people (legislatures) of individual states feel like being stupid, so be it.

HYTEAndy on March 10, 2009 at 9:21 PM

The two guys behind this bill are both raging anti-Catholics. The reason is that the they hold the Catholic Church for the “suppression” of gay rights.

This is big time payback from them. Don’t think this is over. The irony is that one guy…Lawlor represents an overwhelmingly Catholic Italian area. Go figure.

lamaestra57 on March 10, 2009 at 9:46 PM

How about Kelo, which eliminated private property rights in this country?

Phildorex on March 10, 2009 at 6:19 PM

LOL… saw a report on Kelo a couple of weeks ago…

Did you all know that the property sits empty? The project for which it was seized was never built… but they won’t return or sell the property either.

Romeo13 on March 10, 2009 at 10:01 PM

On a State idiocy note…

Theres a report on Fox about a couple of California legislators who are starting a petition drive to get the Term Marriage in all Calif. Laws replaced with Domestic Partnership.

Hate to say it, but I like the solution… get the Government out of the marriage business and allow those who wish to be Married, in the eyes of God, to have a religious ceremony….

Romeo13 on March 10, 2009 at 10:04 PM

it’s kinda simple: rescind the privileged tax status of religion.

eh on March 10, 2009 at 10:34 PM

They should blame Ogabe. He emboldened them by pursuing his socialist agenda and thus far getting away with it.
They must have thought, “Why not dive in. The water looks warm”. Warmer, perhaps, than they imagined.

SKYFOX on March 11, 2009 at 5:38 AM

What in world was their motivation for attempting this?

I doubt there was a single motivation, but I suspect part of it was to prevent the Church from closing hospitals, should FOCA pass.

rightwingprof on March 11, 2009 at 6:29 AM

rightwingprof

You’re probably right, but assuming they are just idiots is kinda like comfort food for the soul.

SKYFOX on March 11, 2009 at 6:55 AM

Let’s hope it stays dead in the water. Some one needs to remind those guys what they are there for…not self serving but to serve their constituents.

freelyspeak on March 11, 2009 at 9:18 AM

While we’re on religion and the Constitution note these words from the grand number 1, “or the right of the people peaceably to assemble.”

Why do Muslims get the right to riot, invade synagogues, intimidate non-Muslims during their “peaceful assemblies” which are anything but peaceful?

Here is a restriction to apply to these public assemblies right off.

I also note that the defacements of the military recruiting facilities on Oakland are another unpeaceful assembly action.

It surely would be nice if the Constitution were to be taken seriously for a change.

{^_^}

herself on March 11, 2009 at 9:30 AM

I’m pretty sure state Constitutions can’t violate the US Constitution.

ladyingray on March 10, 2009 at 4:22 PM

That would be correct. State constitutions can give you MORE rights and immunities than the federal constitution but they cannot give you less.

Maxx on March 11, 2009 at 10:15 AM

They want all religions/beliefs to go by the way side. There is not be total control in the government if that doesn’t happen. I do not depend on the government take care of me!

Eyvonne on March 11, 2009 at 11:41 AM

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