Life Within The Law

I failed the Arkansas Bar Exam. I expected this result, but to be honest I’m still kind of hurt by it. It’s one thing to intellectually analyze your own likelihood of passing – even to come to the conclusion that passing is very unlikely. It’s another thing to absorb the realization of your own failure in the context of so many years of so many bad things happening, unrelentingly, like a torrent of horror. So many terrible things have happened to Laura and I that I scarcely know how to handle myself when confronted with them.

Perhaps the most distressing thing about this experience is how much it makes me doubt my future plans. Not about the bar exam; I have a better study plan, and a better place to study in, and I’m confident I will triumph in February. No, what I doubt is my ability to accomplish all the other things I want to do with my career. For all of the reading that is sure to come, will I ever write anything remotely publishable? Will I ever establish myself as a good candidate for an LL.M. program? Will I, if accepted into such a program, succeed there – or will I fail again? It is an old question, and a common one in times of great difficulty: How many more times must my dreams be smashed against the rocks before I let them sink to the bottom?

Even amidst this horrible circumstance, however, I recognize that I am fortunate in many respects. I am fortunate to have my beautiful wife standing by my side, helping and guiding me through terrible times. I am fortunate to have entered and completed law school. I am fortunate to have friends. Though this experience has shattered what little confidence I still had in my own mind and abilities, I fervently hope that these are enough to live on.

Welcome to the second volume of “Ask Steve,” where you can submit virtually any question you like (via the Ask Steve page to the right and I will attempt an answer.

DAVID BARTON: ALL-STAR ANTI-HISTORICAL JACKASS
DeeMac writes: “What are your thoughts on David Barton?”

Put simply: He’s a terrible historian, a worse theologian, a false scholar–and I hate him very much. A good catalog of the reasons why can be found in this collection of posts on the excellent religious news blog Religion Dispatches. By bastardizing American history, he ignores our national warts; by unjustifiably sanctifying the founding of the American Republic, he overlooks the inconvenient fact that Christianity had already existed for nearly seventeen hundred years. He is the so-called “brains” of the Tea Party’s historical interpretation and political philosophy, and an examination of his idiocy proves the Tea Party to be as intellectually bankrupt as they are morally bankrupt. Of course, leave it to the Tea Party to appoint as their brains a man who has no formal training in law or history, and only rudimentary training in theology. I’ll leave the detailed repudiation of his insanity to the above link at Religion Dispatches, but if anyone is interested in a point-by-point analysis, I might consider providing it.

RANDY FORBES: WORLD-CLASS CULTURE WARRIOR JACKASS
My lovely wife, the Redheaded Skeptic asks: “What do you think about this? I ran across it while doing research for another post.”

Randy Forbes, Representative from the 4th Congressional District of Virginia, is one of the leading “culture warriors” in the House of Representatives. He raises a lot of money for himself by falsely holding himself out be enacting Christian values into law; but what he really does is lie – a lot, and big. He lies to his ignorant Christian supporters, who blithely buy his lies about establishing Christian values in American law; and he lies to the media, because the media will report his lies (even when they know better) to more of his ignorant Christian supporters.

The most potent tool of deception that Rep. Forbes employs is meaningless legislation. This isn’t a well-known fact, but many of the bills passed by Congress (and even signed by the President) have no legal force or effect whatsoever. Most of the media and fundraising attention focuses on the ones that actually do stuff – the Anti-terrorism and Effective Death Penalty Act, the Patient Protection and Affordable Care Act, etc.; but a disturbing amount of the actual work done by our federal representatives is either procedural or forceless–and that’s how it’s always been.

Fortunately, for those with a high-school education and enough interest to do some simple digging, his lies are easily undone. The link above takes you to a page on the American Family Association’s site that encourages support for one of Rep. Forbes’ bullshit bills: House Concurrent Resolution 274: “Reaffirming ‘In God We Trust’ as the official motto of the United States and supporting and encouraging the public display of the national motto in all public buildings, public schools, and other government institutions.”

Those of you who remember your high-school civics or government courses will likely recall that concurrent resolutions have no force of law whatsoever. Even if Congress were to pass this bill (which it won’t as long as the Democrats are in power – hence why it has been stuck in the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties for over three months, despite having 113 cosponsors), the bill would have no effect whatsoever. Concurrent resolutions are the Congressional equivalent of getting drunk and yelling drunken ramblings on a public street.

So the obvious question: Why bother with concurrent resolutions if they have no effect? You could argue about the philosophical necessity for a legislature to have freedom of expression; but I think the reality, in this day and age, is that these meaningless wastes of taxpayer dollars exist solely for deceptive Congressmen to falsely inflate their record to their fickle constituents. That’s just my opinion, of course; and I welcome any opposing view on the merits of the concurrent resolution in the comments.

Welcome to the first edition of “Ask Steve,” where you can submit virtually any question you like and I will attempt an answer. I can’t believe how quickly this segment has gotten off the ground!

A BRIEF HISTORY OF THE FIRST AMENDMENT

NateDawg asks: “Why is the first amendment an amendment at all? It seems like it would have been important enough to include in the original draft of the constitution.”

That’s a good question. The answer isn’t difficult to understand, but it is rather intricately tied into the politics of late 18th-century America. In the interests of keeping this entry to a reasonable length, I’ll give you the quick-and-dirty answer, and supplement it with some recommended reading.

The first place to look for an answer is in the text of the Constitution itself–just the body, not the amendments. What strikes me the most every time I read it is how technical and boring most of it is. Almost all of our current public discussion of the Constitution has to do with great abstract questions of legal philosophy: What is the extent of a particular right? What constitutes free speech? To what extent can the freedom of the press be curtailed in the interests of national security?

These questions take up our discussion today, but they didn’t predominate at the Constitutional Convention in 1787. That meeting of 12 of the 13 states (Rhode Island refused to send delegates) was theoretically organized to modify the then-operating document of the federal government, the Articles of Confederation; but soon enough, the delegates saw the wisdom of replacing the Articles with a new document, which we call our Constitution. Foremost on the minds of the delegates were not abstract questions of philosophy, but rather practical matters of politics – how many representatives would each state send to the new Congress, how the representatives were to be apportioned, how slavery should impact representation, the precise limits of the President’s power, and on and on.

The two chief historical influences on the minds of these delegates were the ineffectual operations of the central government under the Articles of Confederation, and the tyrannical behavior permitted by the British constitution. The delegates wanted to craft a government that would be stronger than that under the Articles, but not so strong as the British monarchy; as a result, much of the document itself is concerned with striking that balance of power among the branches of government.

Once the document was drafted and submitted to the states, a great national debate sprang up as to the wisdom of adopting the Constitution. One the one side were the Federalists, who advocated adopting the new Constitution; on the other side were a group that came to be known as the Anti-federalists, who opposed its adoption. Like the modern Tea Party, the Anti-federalists did not have a single, unified message; they were instead a diverse group of people who opposed the Constitution for different reasons.

Though one of their strongest philosophical objections to the Constitution was that it created a central government that was too strong, by far their loudest complaint was about the potential abuse under the Constitution for curtailing American individualism. As a compromise with these Anti-federalists (and with the large number of people who supported them), the Federalists promised that, once the Constitution was adopted, they would circulate as a set of amendments a Bill of Rights that would assuage Anti-federalist fears about the potential for abuse under the new Constitution. This Bill of Rights was largely modeled on the older English Bill of Rights, and Americans were therefore quite accustomed to having those rights recognized.

For further reading on the topic, I recommend:

• The Federalist Papers
• The Complete Anti-Federalist by Herbert J. Storing
• Founding Brothers by Joseph J. Ellis
• The Creation of the American Republic, 1776-1787 by Gordon S. Wood

THE NATURE OF CONSTITUTIONAL AMENDMENTS

Laura S writes: “I wonder if you could clarify an argument I heard against the use constitutional amendment processes by those opposed to same sex marriage: the argument is that constitutional amendments are used to define individual rights, not to restrict them (which would be the case for same sex partners hoping to marry).  Can you confirm or deny the validity of this idea from a legal standpoint?”

No problem. The answer is no, that argument is not correct; an Amendment can just as easily curtail an individual right as it can establish it. Off the top of my head, three Amendments restrict individual rights: Eleven prevents citizens of one state from suing another state, Thirteen prevents ownership of slaves (which was a fundamental property right at the time), and Eighteen prevents the manufacture, sale, transportation, importation, and exportation of liquor. Twenty-two could also be said to curtail an individual’s right to be elected President, in that no one can serve more than two terms, but I suppose it could also be seen more as government self-regulation than affecting individual rights.

Thanks to NateDawg and Laura S for their questions, and I look forward to answering more questions soon!

Four days ago, Brittany Meyer, a Friendly Atheist contributor, wrote a brief but eloquent note about an on-going attempt by North Dakotans to enact into their state constitution a version of a federal law called the Religious Freedom Restoration Act (RFRA). Prompted by a commenter, I offer this humble de-legalization of Dr. Meyer’s post, followed by my own comments on the matter. So that I won’t leave anyone behind, I’m starting from the very beginning.

In our country, two separate legal systems exist side-by-side, operating concurrently on a wide range of issues: the federal system, in which laws are written by the federal Congress of the United States, enforced by the President of the United States, and adjudicated by the Supreme Court of the United States (and its subsidiary courts); and the state system, in which each state has its own set of laws drawn up by its legislature, enforced by its governor, and adjudicated by its state court system.

As Dr. Meyer aptly noted, all laws burden someone. Most challenges to laws come from someone who is being burdened by a law and doesn’t like it, and thus attempts to invalidate the burdening law. In the federal system (and so far as I know, in all state systems as well), laws whose validity is questioned in court are subjected to one of a number of different tests. There are three tests used to determine the validity of any law: the rational basis test, in which a law must be rationally related to a legitimate governmental interest–an easy test for a law to pass, assuming it is not arbitrary or irrational; the intermediate scrutiny test, in which a law must be substantially related to an important government purpose–a harder test that is typically restricted to gender and legitimacy discrimination; and the strict scrutiny test, in which a law must be both necessary and the least burdensome approach to a compelling governmental interest–the hardest test, one which few laws survive, and one which is typically relegated only to disputes over the most fundamental rights.

This three-fold division of tests seems easy enough to understand, but the facts on the ground are often more complicated. It is not unusual for a case to present such a blend of law and fact that the judge may not know which of these tests to apply; nor it is unusual for a court to change its mind about which test to apply to certain kinds of laws. In almost every case, these decisions lie exclusively with the court system – either the Supreme Court, or an inferior court if the Supreme Court declines to hear the case. Every once in awhile, though, the Supreme Court employs a particular test that irks Congress, and Congress attempts to force the Supreme Court to use a particular test.

Enter the RFRA. Responding to a decision of the Supreme Court (Employment Division v. Smith, 494 U.S. 872 [1990]), in which the Court declined to employ the strict scrutiny standard in a case essentially about the validity of religious uses of peyote, Congress enacted the RFRA in a clumsy attempt to force the Supreme Court to use the strict scrutiny test in all cases involving a religious objection to a law. The Supreme Court did not appreciate Congress’s interjection. In an opinion (in City of Boerne v. Flores, 521 U.S. 507 [1997]) whose questionable reasoning only barely covers for the Court’s visceral distaste for Congress’s meddling, the Court declared (in effect) that it was up to them, and them alone, to determine the appropriate test to be applied in such cases. (Postscript: Congress later found a workaround by requiring local communities to conform their laws to the RFRA as a prerequisite to receiving federal funds. Congress gets away with this almost every time — that’s why the drinking age is 21 across the country, because states who lower their drinking age don’t get federal money to maintain their highways.)

Which brings us, finally, to Dr. Meyer’s concern. What’s happening in North Dakota is an attempt to modify the North Dakota constitution to include language substantially identical to the RFRA. If the amendment is adopted, then challenges in North Dakotan courts to North Dakotan laws that burden religious exercise will, by law, be determined according to the strict scrutiny test. Dr. Meyer evidently fears this will favor religion and lead to an epidemic of religiously-sanctioned lawlessness in North Dakota, and thus she cautions North Dakotans from approving the amendment.

I believe Dr. Meyer’s concern is misplaced, and the North Dakotan effort poses no threat – either to North Dakotans, or to Americans generally. This belief is based upon two foundations. First, strict scrutiny does not pose the all-consuming, all-destroying hurdle that Dr. Meyer implicitly argues it does; it merely shifts the evidentiary burden to the governmental party and raises the persuasive standard that must be employed. It does not guarantee the end of all laws which can be religiously attacked. It is feasible that a North Dakotan law prohibiting the use of peyote, even in Native American religious ceremonies, might fall to such a standard, and the peyote practice would be permitted. It is not feasible, however, that Warren Jeffs and the FLDS could set up shop in Bismarck and begin freely exploiting and abusing the young girls of North Dakota. The first case presents a conflict between an abstract governmental interest (we don’t like peyote) and an ancient religious practice which poses no societal threat (peyote consumption in a tipi on tribal land); the second case presents a concrete governmental interest (we don’t like perverts molesting young girls) with a religious practice which poses grave societal threat (the systematized abuse of young girls under the guise of so-called marriages).

Finally, Dr. Meyer contends that enacting the RFRA will “privilege religion,” but she does not specify how religion will be so privileged. I think the omission is more intentional than it may appear, because there is no way that the RFRA can privilege religion. There is a fundamental distinction in constitutional law between laws that strengthen the “free exercise” of religion, and laws that “establish” religion. (This distinction is well-encapsulated by the two eponymous clauses of the First Amendment to the U.S. Constitution.) As a matter of legal and political philosophy, society benefits from a maximization of “free exercise” laws, because such laws innately guarantee the breadth and depth of potential religious belief and practice; but society is noticeably afflicted when “establishment” laws are enacted, because such laws restrict the freedom of religious belief and practice. North Dakota’s proposed RFRA amendment does not propose to establish any religion – nor even religion itself; so far as I understand the matter, it only seeks to maximize potential religious freedom.

We atheists should not fear religious freedom, because we are among its chief benefactors; our public unbelief is as protected as the hate-filled bile that comes out of any redneck preacher.