Question of the First Amendment and Traffic Patterns

It isn’t often that a World Net Daily article doesn’t lead to high blood pressure and audible disgust about the regressive mentality of the authors and the vast majority of the readers of the radically right wing news organization. So, I was surprised that I was reading this story today and was in agreement with the authors and those victimized, rich, white people for which the article was advocating.

The city of Gilbert, Ariz., has ordered a group of seven adults to stop gathering for Bible studies in a private home because such meetings are forbidden by the city’s zoning codes.

The issue was brought to a head when city officials wrote a letter to a pastor and his wife informing them they had 10 days to quit having the meetings in their private home.

The ban, however, prompted a response from the Alliance Defense Fund, which filed an appeal with the city as the first step in its campaign to overturn a provision it describes as illegal. (Read More Here)  h/t HolyWeblog

I can’t really get my head around this kind of city government activism. What does it achieve and really could it be this big of a problem that people get together and study the bible?

This as a clear violation of the First Amendment and the church will win the court case. But I also see this as a selective application of rules. What would stop this city from going after any group of people, organized or not, from getting together to say, organize a campaign to elect someone else to the city planning board?

The application of the law needs to be both equal and blind but also fit into the Constitutional framework that makes our judicial system work. Getting people together to talk about divergent ideas is SO clearly protected by the First Amendment, which says, “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.”  Left, right and center can get behind the benefits this protection provides to our free society.

The liberal elite should jump on this bandwagon and say this isn’t right. Because you know we won’t get together on the Second Amendment with these people, so we can at least come together and fight for the First one.

59 Responses to “Question of the First Amendment and Traffic Patterns”

  1. The liberal elite should jump on this bandwagon and say this isn’t right

    Are you serious? Check on the comment thread from this posting, to understand what the “liberal elite” thinks about not following the sacred law.

    jewschool.com/2009/12/02/19147/keeping-christmas-shopping-safe-for-christians/#comments


    Jonathan1 · March 13th, 2010 at 8:35 pm
  2. Big difference in a person or group choosing not to buy something than if a gov’t takes away the rights of people to assemble.


    dcc · March 13th, 2010 at 9:54 pm
  3. @dcc.

    Read through all of the comment threads to understand what the “liberal elite” thinks about not following the sacred law.


    Jonathan1 · March 13th, 2010 at 10:10 pm
  4. The ACLU teamed up with the late Jerry Falwell in order to fight a religious freedom case. The libertarian “left”, known mostly for getting pernicious religious influence expelled from the public sphere, has ALWAYS been at the forefront of protecting religious individuals from pernicious public coercion.


    B.BarNavi · March 14th, 2010 at 12:27 am
  5. The libertarian “left”, known mostly for getting pernicious religious influence expelled from the public sphere, has ALWAYS been at the forefront of protecting religious individuals from pernicious public coercion.

    Maybe so. But, the Jewschool “left” appears primarily concerned with making sure that everybody abides by the law of the land, exactly (see that comment thread.)

    So, unless a court overules this ordinance, the ordiance is good law; and the Bible-study bans will surely invite widespread criticism here for that reason (in the same way that some condemned little Girl Scouts for making Christmas cookies in a public school), for the law of the land is the law of the land.


    Jonathan1 · March 14th, 2010 at 1:02 am
  6. @ Jonathan

    You’re conflating constitutional principles with a municipal ordinance. Not the same thing. Towns pass ordinances or enforce ordinances in such a way that they’re unconstitutional – or at least arguably unconstitutional – all the time. Then they get sued, which I expect the city of Gilbert likely will if they don’t back off.

    And B.BarNavi is right. These are the two sides of the same coin in our understanding of religious freedom in this country, and you often find the same people fighting both fights.


    em · March 14th, 2010 at 1:02 am
  7. And, the ordinanc is good law under the 10th Amendment, in case there was any confusion.


    Jonathan1 · March 14th, 2010 at 1:04 am
  8. @em. The 10th Amendment of the U.S. Constituion states that: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    Hence, this ordinance is good law. No ifs ands or buts. There indeed is the possibility that the courts may rule this ordinance unconstitional, under the 1st and 14th Amendment claims but, unless that happens, it is indeed good law, and I’m disapointed that you are arguing to violate the U.S. Constitution.

    The law of the land is the law of the land, and that’s what is important . . . right?


    Jonathan1 · March 14th, 2010 at 1:08 am
  9. @ Jonathan

    I was going to argue against the content of your comment, but I think you’re arguing in bad faith. That’s a gross misrepresentation of the argument that was being made on that thread. And frankly, an honest reading of that thread undermines your claim that the “Jewschool left,” whatever that is, only defines a correct interpretation of the law as whatever the courts decide.

    The courts have repeatedly ruled that things like Christmas trees are secular representations of the winter season and are perfectly fine. Some of the commenters in that thread were arguing that a broader interpretation of the establishment clause than the ones the court has made would be more appropriate and more in keeping with their understanding of that principle.

    So it absolutely was not a “whatever the law says” line of argumentation.


    em · March 14th, 2010 at 1:17 am
  10. I asked: Even more, why does it bother anybody that government might sponsor religious activities?

    em answered: “ ‘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.’

    It’s the law. The supreme law of the land.”

    “Jewschool left,” whatever that is

    Ok. It was really em. Agreed that there is no “Jewschool left.”

    Now, can you explain the justification for advocating the violation of the 10th Amendment of the U.S. Constitution.


    Jonathan1 · March 14th, 2010 at 1:23 am
  11. Though, for what it’s worth, restricting freedom of assembly is a power prohibited to the states by the U.S. Constitution, so even your 10th Amendment argument doesn’t fly.

    But that’s not the only thing this case will turn on. Gilbert will argue that this is a home church, and churches (religious institutions) are only allowed in certain zoning classifications, which are generally justified under looking out for the “healthy, safety and welfare” of the town, with welfare being a very broadly defined category. Traffic, parking, imposition on the neighbors, etc. And these folks will argue that it isn’t a home church – it’s more like a book group or social gathering – and if they’re not going to regulate Cub Scout meetings or book groups or birthday parties – they can’t regulate this bible study group.

    Think of it like this. I can’t run a professional mechanic’s garage out of my house in a residential neighborhood. I can change work on my own car in my driveway. What happens if I’m working on my friends’ cars every weekend and sometimes they’re paying me for my trouble and the neighbors complain? You’re going to get a lot of back and forth about what constitutes a mechancic’s garage and what constitutes professional and what constitutes healthy, safety and welfare.

    You’re going to have all that mundane stuff thrown in, along with right to assembly and freedom of religion.


    em · March 14th, 2010 at 1:26 am
  12. Cross-posted with you, so the grammar of my response looks weird, but I think my last comment covers most of the territory.

    But in case it’s not clear, that First Amendment you quoted me quoting includes no establishment of religion (government sponsoring religious activities) AND protecting exercise of religion and the right to assemble (the bible study group).

    Again, these are powers prohibited to the states by the 10th Amendment. There is no contradiction.


    em · March 14th, 2010 at 1:30 am
  13. Though, for what it’s worth, restricting freedom of assembly is a power prohibited to the states by the U.S. Constitution, so even your 10th Amendment argument doesn’t fly

    Ironically, it absolutely does fly. True, there might be a legal challenge to this law in the courts, which might rule this law unconstitutional (the courts have that power under Marbury.) But, until that time, this ordinance is unquestionably good law. Do you realize how many laws exist–many upheld by the U.S. Supreme Court–that appear to violate the 1st Amendment? Look at how outdated Pacifica is, but it is still good law: en.wikipedia.org/wiki/Federal_Communications_Commission_v._Pacifica_Foundation

    But that’s not the only thing this case will turn on. Gilbert will argue that this is a home church, and churches (religious institutions) . . .

    Unless you own a time machine, I’m a bit confused as to how you know for sure what the parties will argue, or how the courts might rule on such hypothetical arguments . . .

    Or, maybe you sit on the 9th Circuit? Well, if that’s the case, I’m sure you realize that a law won’t become “unconstitutional” until a court rules as such . . . so again, this is good law.

    Point is, this is just further evidence that we all just advocate for the laws with which we agree, and we claim that “our” laws are constitutional, while the laws we don’t like aren’t. It’s just a bit dishonest.


    Jonathan1 · March 14th, 2010 at 1:38 am
  14. But in case it’s not clear, that First Amendment you quoted me quoting includes no establishment of religion (government sponsoring religious activities) AND protecting exercise of religion and the right to assemble (the bible study group).

    This had to do with why a bunch of Girl Scouts couldn’t make Christmas cookies in a public school building. You’re reason was that the 1st Amendment prohibited such acitivities (and we stipulated that the case law backed this claim.)

    Again, these are powers prohibited to the states by the 10th Amendment. There is no contradiction

    This just isn’t true. The courts indeed do have the power to declare such a law unconstitutional (under the 14th Amendment, so the case might not even have had standing before 1868.) But, that hasn’t happened. So, the Arizona law is good law.

    If you want to make the claim that following the law of the land is what is most important (so that it’s ok to put Christmas trees on school grounds, but it’s not ok for Girl Scout to make Christmas cookies there, after school), then you have to accept that this Arizona law is fine. It’s the law of the land!


    Jonathan1 · March 14th, 2010 at 1:47 am
  15. Jonathan,

    You’re taking arguments made by Shoshie, BZ and me, some of which were overlapping, but which were not identical, and putting them all on me. I really don’t want to rehash the entire Christmas thread, but just to clarify how the whole thing developed …

    Shoshie said the Girl Scouts meeting on public school grounds and making Christmas magnets constituted government sponsorship of religion.

    You said, “What’s wrong with government sponsorship of religion?”

    I said that it violates the First Amendment. I was answering your question, not making a determination about the Girl Scouts.

    That government sponsorship of religion is unconstitutional is pretty uncontroversial. What gets fought about is what, exactly, constitutes government sponsorship of religion. In general, the courts have found that things like Christmas trees in public and scout troops meeting in schools and doing vaguely Christian cultural activities does not meet the test, though some people (BZ, maybe Shoshie’s mom) think the courts are mistaken. You might have noticed that most Supreme Court decisions are not unanimous, so there is lots of disagreement about how to apply these principles.

    Getting back to the Arizona case, again, you have general principles and you have their application.

    We have a general principle of freedom of assembly, a general principle of freedom of religion, a general principle about use of private property and a general principle about zoning regulations being within the purview of local government.

    Any given case is going to hinge on how the facts of the case fit into both an interpretation of the application of those principles and finding a balance when adhering to one of the principles causes you to violate the other.

    I don’t know why my summary of the issues provoked such a response from you. No, I’m not on the 9th Circuit and no, I’m not an attorney. I’m pretty sure you’re not one either. I have spend a good chunk of the last 10 years covering local government, including far more zoning disputes than I care to recall and have had a lot of conversations with land-use attorneys and planners – and a lot of that experience was in Arizona, so I’m somewhat familiar with the positions the courts have taken there. And this Gilbert case will hinge as much on land-use law as it will on freedom of religion or assembly – if it goes to court at all. The publicity may well cause the town to back down before it ever gets to court.

    There’s a principle called “customary and reasonable use” of property. Arizona courts are very friendly to property rights. Gilbert could very well lose this case based on a bible study group falling into the “customary and reasonable” use of a residential property without even touching on any constitutional issues.

    The courts indeed do have the power to declare such a law unconstitutional (under the 14th Amendment, so the case might not even have had standing before 1868.) But, that hasn’t happened. So, the Arizona law is good law.

    But that hasn’t happened yet. So, the Arizona law is valid for now.

    Not good law or correct law. But yes, on the books, and Gilbert can try to enforce it and see what happens.

    If you want to make the claim that following the law of the land is what is most important (so that it’s ok to put Christmas trees on school grounds, but it’s not ok for Girl Scout to make Christmas cookies there, after school), then you have to accept that this Arizona law is fine. It’s the law of the land!

    This is not my position or my claim. It is a strawman that you have constructed. If you would like to argue with my actual position, we can continue this in the morning.


    em · March 14th, 2010 at 3:15 am
  16. Okay, and I said I was leaving, but one more thing …

    Let’s review how this thread got to this point. dcc said left and right should see this case the same way – as a violation of civil liberties.

    You said, no, the “liberal elite” will say the law is the law.

    When called out on using “liberal elite,” you changed it to “Jewschool left.”

    Asked to define that, you said you just meant me.

    Speaking only for myself, my position is not that “the law is the law so any law is a good law.”

    That’s also not the position that civil libertarians have taken. The position that civil libertarians have taken is that we should take the broadest possible interpretation of the basic protections we are afforded through the constitution, and that’s a position I generally take (while acknowledging that the courts haven’t always held the way I would have them hold).

    That’s the position I took in the Christmas thread, and that’s the position I’m taking here. There is no contradiction, and the only way you’ve managed to create one is by mis-stating my position.

    You can keep insisting that I actually believe something that I don’t, but I don’t think it’s going to be a very fruitful discussion.

    I’ll let the other members of the “Jewschool left” and the “liberal elite” speak for themselves.


    em · March 14th, 2010 at 3:28 am
  17. I’ve never believed in this whole “strawman” argument concept. I’ve tried to make my position, based on your, BZ’s, and Shoshie’s arguments–from this and other threads.

    I made the 9th Circuit reference because this law is indeed “good law” until a court such as the 9th Circuit overules it. I was trying to say that our personal opinions on such matters really don’t determine whether or not something is “good law,” or Constitutionally valid. And, frankly, I do have a little bit of a legal background– and you obviously don’t–that doesn’t mean that you’re wrong or I’m right, and I’m pretty sure that you’re smarter than me, but it makes it a bit difficult (at least for me) to follow the way you approach some of these legal issues.

    Really, I think this Arizona law is stupid, and even if the U.S. Supreme Court upholds it I wouldn’t want anybody to enforce it, but I also really don’t understand why Shoshie’s mother stopped those little Girl Scouts from making Christmas cookies either, even though they might have been violating U.S. Supreme Court rulings in the process. I’ll let you have the final word if you want it . . .


    Jonathan1 · March 14th, 2010 at 3:33 am
  18. I’ll let the other members of the “Jewschool left” and the “liberal elite” speak for themselves.

    “Jewschool left” was indeed a play on DCC’s “liberal elite”–which he uses in this post. You are correct that I should have simply called out you by name. I will do it in the future.

    I really genuinely don’t understand your legal arguments on this stuff, but maybe it’s me. Ok. Now I’ll really let you have the last word, if you want it.


    Jonathan1 · March 14th, 2010 at 3:38 am
  19. Shoshie’s mother didn’t stop them from making Christmas magnets! She asked that non-Christmas options be made available, and they were. Shoshie made some sort of reference to the idea that her mother could have sued. My own guess is that she would not have been successful.

    If you think that I was arguing that there is a law against Girl Scouts making Christmas magnets if they meet in a public school, you misunderstood my argument. I’ll go ahead and take responsibility for that. I obviously wasn’t clear.

    Again, when I referred to the First Amendment, I was answering only the question “What’s wrong with government sponsoring a religious activity?” I was not making any judgment on the legality or illegality of the Girl Scouts and their magnets.

    I’ve tried to make my position, based on your, BZ’s, and Shoshie’s arguments–from this and other threads.

    I think this is part of the problem. You offered up an entire thread on a different topic as proof of the position that people would take on this topic. I don’t think that’s a fair way to argue – not because I didn’t mean what I said, but because there was a whole lot that I didn’t say. I didn’t see that thread and types of arguments being advanced in it as primarily legalistic, though it touched on legal issues. I saw it as more about the relationship between us as religious minorities and the culturally dominant majority. So I wasn’t structuring my argument to address the types of points that this issue in Gilbert raises.

    This isn’t about me having the last word. It’s just that it’s very frustrating to have you tell me what I think and then expect me to defend that position, when it’s not actually my position.

    For example:

    I was trying to say that our personal opinions on such matters really don’t determine whether or not something is “good law,” or Constitutionally valid.

    I agree with this, and I haven’t argued otherwise.


    em · March 14th, 2010 at 5:07 am
  20. Really, I think this Arizona law is stupid, and even if the U.S. Supreme Court upholds it I wouldn’t want anybody to enforce it.

    I think you might be a little unclear on some of the facts of this case that I’m using to inform my opinion on this. (When I said Gilbert will argue … etc., I was doing an analysis of the types of issues that are likely to come up IF this case is litigated, which it might well not be. That clause in front of my argument might have helped clear that up, at least.)

    This is not an Arizona law. It’s Gilbert’s municipal ordinance. And it’s not an ordinance that says “no Bible study in your house.” As part of the land use code, Gilbert lays out permitted and proscribed uses for each zone or land-use designation, as well as uses that are “conditional uses” (you can do them if you apply for a CU permit). Churches are not a permitted use in residential zones. This is very, very common in land-use codes.

    In Arizona, most code enforcement (like, 95 percent of it) is complaint based. Code enforcement officers don’t go around peeking in windows. What likely happened is that a neighbor complained about the amount of cars parked in front of the home every Sunday, leading to an investigation. But there might have been something else that sparked a complaint.

    The code enforcement officer looked at how churches and church activity were defined in the code, decided that this Bible study group fit the bill, and ordered these folks to stop. A different code enforcement officer easily could have reached the opposite decision and told the neighbors they just have to put up with it. The Bible study folks now are appealing the citation, which happens at the municipal level. The city certainly could decide to drop it, but if they don’t, the next step will be the district court.

    Based on the information in the article, it certainly appears that religious freedom and freedom of assembly will be part of the argument against this interpretation of the code. In just about every lawsuit I’ve ever seen, lawyers will put in every argument they have, and based on other zoning disputes that I’ve covered, I think it’s very likely that we would see an argument that these meetings don’t fit the definition of a home church and an argument that small-group study of religious texts is a “customary and reasonable use” of a residential property.

    Again, based on other lawsuits like this that I’ve covered, I think it’s likely that Gilbert would try to avoid the big constitutional issues and argue that the only question before the court is the city’s ability to regulate the location of churches to protect the “health, safety, and welfare” of the general community. To make that argument, Gilbert also would try to show that this group meets the definition of a church, as opposed to just a small Bible study group.

    Where the big constitutional issues come in is that Gilbert may face a higher burden in proving their ordinance is justified because of its potential infringement on rights protected by the First Amendment.

    As far as the Tenth, my point in raising all this stuff about zoning, is that even if you argue successfully that this has nothing to do with the First Amendment, there are a lot of legal issues at the state level that could and would be hashed out in court. And if the First Amendment arguments stay in the discussion, well, Gilbert has to comply with those, however the court interprets that in this case. That is, the Tenth Amendment doesn’t mean “Gilbert can do whatever it wants.”

    All that said, even if this case were to go to court, I think it’s very unlikely that it would even get to the Arizona Supreme Court, much less the U.S. Supreme Court.

    This is a very conservative, Christian community. If they were trying to stop some pagans from doing a nature ceremony, there probably would be more political support for enforcing the code this way, but because it’s Christians, the City Council is very likely to drop this as quickly as possible. My guess is the ordinance against churches in homes stays on the books, but they might tweak the definition of home churches to make it clear that Bible study is okay.


    em · March 14th, 2010 at 5:45 am
  21. This isn’t about me having the last word. It’s just that it’s very frustrating to have you tell me what I think and then expect me to defend that position, when it’s not actually my position.

    Look em, I really don’t mean to offend people as much as I always seem to in this forum. I referenced that comment thread in this thread because I do see a contradiction in what DCC is arguing for and what others (NOT em) argued for in that other thread.

    I used the term “Jewschool left” in response to DCC’s use of “liberal elite” (see his/her last paragraph) because I don’t believe in concepts such as “elite.” (Trust me, I heard that kind of bullshit all of the time in law school.)

    Unlike Shoshie and BZ, you wanted to challenge me on this stuff. Fair enough. That was the reason I’ve addressed you when you asked what “Jewschool left” meant. In the future, I will not use such terms, and I will attempt to be more meticulous in not conflacted different commentators’ ideas.

    If you are writing that the Gilbert ordinance (ie, Arizona law) is stupid because it encroaches on religious freedoms and free speech, and that’s dangerous, and that the law shouldn’t be enforced–even if the U.S. Supreme Court were to uphold it–then we agree. The point I was trying to make is that just because a law is on the books, we shouldn’t necessarily follow it, and just because a law meets Constitutional requirements, it isn’t necessarily a positive development (see every gun law on the books, and the 2nd Amendment.)


    Jonathan1 · March 14th, 2010 at 11:44 am
  22. I was kidding around with the Liberal Elite thing but this was an interesting argument…except with the ridiculous idea that the 10th Amendment applies when it has to do with the Freedom of Assembly of a religious event…I mean…that is a pretty clear no brainer.


    dcc · March 15th, 2010 at 12:17 am
  23. 10th Amendment applies when it has to do with the Freedom of Assembly of a religious event…I mean…that is a pretty clear no brainer

    Fair enough. And as I’m sure you are aware, dcc, the U.S. Supreme Court did not rule that the 14th Amendment covered the Freedom of Assembly until 1937 (en.wikipedia.org/wiki/DeJonge_v._Oregon) Perhaps the justices had no brains before that year.

    Also, under Marbury v. Madison (en.wikipedia.org/wiki/Marbury_v._Madison), the courts have the power of judicial review, which means that the courts have the ultimate authority in determing if a given law is constitutionally valid. Thus, the Gilbert statute certainly is good law until a court determines that it violates the 1st Amendment. (Need be, I can provide a bunch of 1st Amendment cases where the courts indeed have upheld laws that any of us would think violate the 1st Amendment.) And, Gilbert, Arizona does have the power to pass ordinances under the 10th Amendment.

    We can argue that the statute violates the 1st Amendemnt, in our opinion, but that doesn’t mean that it isn’t good law.


    Jonathan1 · March 15th, 2010 at 1:54 am
  24. [...] Jew School: “‘The city of Gilbert, Ariz., has ordered a group of seven adults to stop gathering for Bible studies in a private home because such meetings are forbidden by the city’s zoning codes . . . The ban, however, prompted a response from the Alliance Defense Fund, which filed an appeal with the city as the first step in its campaign to overturn a provision it describes as illegal’ . . . The liberal elite should jump on this bandwagon and say this isn’t right. Because you know we won’t get together on the Second Amendment with these people, so we can at least come together and fight for the First one.” [...]


    ADF Alliance Alert » Question of the First Amendment and traffic patterns · March 15th, 2010 at 12:47 pm
  25. The libertarian “left”,

    And, btw, em–just so there is no confusion–I used term “Jewschool left as a play on B.BarNavi’s term “libertarian left.” (see his/her comment above).

    Sorry . . . . I just have way to much time on my hands these days.


    Jonathan1 · March 15th, 2010 at 4:23 pm
  26. I am a lawyer, for the record.

    Jonathan1, I am not sure what you’re trying to get at with your citation of the 10th Amendment. That Amendment does say that states are permitted to pass laws not inconsistent with the Constitution, but it doesn’t say that laws that are inconsistent with the Constitution are “good law” until struck down by a federal court with jurisdiction. In fact, according to Ex Parte Young, any state law inconsistent with the Constitution is void from the start. Federal courts do not, theoretically, “strike down” state laws, even though that phrase is frequently used. Rather, they decide whether, in light of the Constitution, the state law can be legally enforced (in fact, even after state laws are declared unconstitutional by a federal court, they frequently remain part of the state code, even though as a practical matter they’re dead).

    On the other hand, you’ve got a point. We have limited authority to say that a law is constitutionally enforceable, even though we may have strong opinions on whether or not the law should be. State courts have some authority to decide that question, federal district courts have more, federal circuit courts still more, and of course the Supreme Court has the last word. I can’t really say whether the municipal ordinance in this case is unconstitutional on its face, as applied, or not unconstitutional at all, particularly since the only facts available to us about the ordinance or its application come from WorldNetDaily.

    That said, I think that we should all agree that laws against small gatherings in private homes are generally bad ideas and are inconsistent with American ideas of what government can and can’t regulate. They probably should be considered unconstitutional, unless the state can articulate a compelling reason behind them and narrowly tailors them to that reason.


    Sam · March 15th, 2010 at 7:45 pm
  27. I don’t think we are disagreeing at all, Sam.

    What I am trying to say is that the 10th Amendment grants local governments the power to make ordinances. But, to your point, are you arguing that the 10th Amendment doesn’t leave most tasks of governing to the states–maybe I’m missing something?

    ((As a side note, I’m not sure that everybody realizes that the Bill of Rights wasn’t applied to States (in almost every case) before passage of the 14th Amendment, which further weakens this idea that the states could never, ever pass a law which might contradict the 1st Amendment, and it’s a “ridiculous idea” to argue otherwise see en.wikipedia.org/wiki/Barron_v._Baltimore.))

    So, we have to work under the assumption that local governments makes such ordinance with Constitutional limitations in mind–even though they often don’t in reality, but we have to lend state lawmakers that faith or the system would fall apart.

    And, even considering Ex Parte Young, who determines that a statute is inconsistent with the Constitution and void from the start? The courts do. Not Sam or dcc or Jonathan1 or em. And, I’m sure you know–better than most of us because you are a lawyer–that there are plenty (far too many) of examples when the courts–including the USSC–have made rulings that seem to contradict basic Constitutional principles. So, we can’t say with certainty that this ordinance wouldn’t hold up in front of the Supreme Court.

    And, the point I was trying to make (not very effectively, apparantly) is that even though this law is a valid one because the courts haven’t declared it unenforceable in light of the 1st Amendment (not, chalila v’chas, struck it down,) and even if the USSC were to uphold this ordinance . . . it’s still an idiotic law, which shouldn’t be enforced . . . {{{this all began on another comment thread, and a disagreement as to why some Chritmas celebrations are ok (IMHO they’re all ok), and why some aren’t (in the opininon of others because they violate judicial distinctions between the public and private spheres)}}}


    Jonathan1 · March 15th, 2010 at 10:23 pm
  28. PS- although DeJonge may have been the first Supreme Court case to explicitly incorporate freedom of assembly into the Fourteenth Amendment, that doesn’t say much about what the Justices thought before that point. The Supreme Court can only address the cases that come before it, and, to my knowledge, never addressed a fourteenth-amendment free-assembly case until DeJonge (which was actually among the first incorporation cases in American history, decided before the Supreme Court decided to incorporate the fourth, sixth, eighth, and (for the most part) the fifth amendments). Even then, I’m pretty sure that the main point in dispute was whether the states could ban assembly by people who advocated violent overthrow of the government, not whether the states could ban assembly by people who wanted to study the Bible. That wouldn’t have been a hard question.


    Sam · March 15th, 2010 at 10:34 pm
  29. My point is that, although it’s not us who decide whether it’s void or not, the law is not “valid” simply because its constitutionality hasn’t yet been tested in court. At best, we can say that we don’t know whether it’s valid or not. If a court says that it is unconstitutional, it will have been void all along. “Valid” is the same kind of judgment as “constitutionally unenforceable.”

    I checked out the (rather long, convoluted) comment thread from the other post. It looks like even there, people were talking past each other – it looks as if people were saying, at various different times, “the Court distinguishes between public and private spheres, which supports my opinion that the spheres are legally different” or “the Court distinguishes between public and private spheres, which supports my opinion that the spheres are morally different,” or “the Court distinguishes between public and private spheres for whatever reason, and I’m happy to go along with that.” All relatively different points from the perspective of discussing the moral status of the law of the land.

    In any case, the public/private distinction is pretty well established constitutional law at this point, as is the incorporation of the First Amendment against the states. We can say with relative certainty that, absent some further amendment to the Constitution or major jurisprudential upheaval, courts will continue to follow those lines of reasoning. Yes, there was a time when the Bill of Rights was not incorporated, but it would probably take a pretty massive force to actually de-incorporate the First Amendment, just as it took a constitutional amendment to incorporate it in the first place. The law isn’t very predictable, but sometimes good predictions can be made – otherwise my profession would be pretty useless.


    Sam · March 15th, 2010 at 11:15 pm
  30. OK. First off, the notion that a public school hosting a Christmas party is “violating” the Establishment/Free Exercise Clause is as silly as claiming that hosting an atheism party violates that Clause. Prima facie the specific ouster of religious events or groups from the grounds of public schools (i.e. “Sorry no Christmas parties! But saxophone club is in room 322…”) is a plain violation of the Establishment Clause.

    @Jonathan1:“We can argue that the statute violates the 1st Amendemnt, in our opinion, but that doesn’t mean that it isn’t good law.”

    Well it’s “good law” in the sense that it’s made it this far onto the books without being struck down and is being enforced. As for being moral, it clearly isn’t. This is just Exhibit 17,455 Subsection 29d of why “the law is an ass”. The paper and print of law books accept immoral, persecutory and evil law with the same equanimity as right and just law.

    The notion that the existence of a law constitutes its moral authority is inane, and should certainly have died by the mid-1900s (if not 1,000 BCE…!!).

    The Constitution was based on the Founders understanding of natural law — that there are certain basic freedoms which every human being is granted by God, and that governments can only morally exist by protecting that freedom.

    As to actual Constitutionality — it was not always clear that state and local governments are bound by the Bill of Rights. In fact there’s strong indication from the plain meaning of the text that they’re not.

    So in principle there doesn’t seem to be anything unconstitutional, in letter, with a given state deciding by consensus that “Only Catholics can work for the Fisheries Commission” or “Only Jews and middle-age Taiwanese immigrants can work for the DMV,” etc. etc.

    In such a scenario, that state would naturally face strong legislative and perhaps Executive pushback at the federal level, as the other states would likely reduce the “wacky state’s” privileges, funding goodies, etc. etc. Ergo a livable balance would reassert itself, as in every living system.

    The courts seem to have basically ruled, however, that the Constitutional restrictions on federal power also devolve onto state and local governments. Under that presumption, the Gilbert, AZ regulation is unconstitutional and seems to qualify equally, devastatingly well for both an as-applied and facial challenge. (A sure sign of a bad law!)

    Either way the Gilbert, AZ reg is plainly anti-Constitutional in that it traduces the fundamental freedoms the Constitution intends to preserve.


    Eric · March 15th, 2010 at 11:25 pm
  31. PS- although DeJonge may have been the first Supreme Court case to explicitly incorporate freedom of assembly into the Fourteenth Amendment, that doesn’t say much about what the Justices thought before that point.

    My general point is that it’s not so inconceivable that a state might pass a freedom-of-assembly-related law that appears–to us–to violate the Bill of Rights, and it probably wouldn’t have even been an issue before 1937, and certainly not before 1868.

    My point is that, although it’s not us who decide whether it’s void or not, the law is not “valid” simply because its constitutionality hasn’t yet been tested in court. At best, we can say that we don’t know whether it’s valid or not. If a court says that it is unconstitutional, it will have been void all along. “Valid” is the same kind of judgment as “constitutionally unenforceable.”

    Is “valid” not an antonym for “void?”

    In any case, are you arguing that people shouldn’t abide by a given statute until a court has had the chance to determine if it is unconstitutional or not? If that’s the case, would it not be a more effecient system of government to have the judges make the laws?

    It looks like even there, people were talking past each other

    Welcome to Jewschool.

    We can say with relative certainty that, absent some further amendment to the Constitution or major jurisprudential upheaval, courts will continue to follow those lines of reasoning.

    All I’m trying to say is that, even if this line of reasoning is cointinued, we should let our Christian friends and neighbors celebrate their holidays in peace, and not run to court if our child’s 5th grade teacher has the class sing “Silent Night” in school. That’s all I was/am trying to say, really.

    The law isn’t very predictable, but sometimes good predictions can be made – otherwise my profession would be pretty useless.

    Your profession is vital. People don’t understand what Dick the Butcher meant.


    Jonathan1 · March 15th, 2010 at 11:43 pm
  32. The paper and print of law books accept immoral, persecutory and evil law with the same equanimity as right and just law

    I’ve got a longer comment awaiting moderation, but thank you, Eric.


    Jonathan1 · March 16th, 2010 at 12:07 am
  33. the law is not “valid” simply because its constitutionality hasn’t yet been tested in court. At best, we can say that we don’t know whether it’s valid or not. If a court says that it is unconstitutional, it will have been void all along. “Valid” is the same kind of judgment as “constitutionally unenforceable.”

    @Sam, btw, I have to ask:

    Are you telling us that your colleagues and you never use expressions like “struck down,” but instead always say “the court decided that, in light of the Constitution, the given law cannot be legally enforced?”

    Furthermore, you don’t use expressions like “good law” or “law of the land” unless the USSC has upheld such a law’s constitutional validity?

    And your colleagues and you refer to laws passed by Congress or a state assembly as a law that “has been passed, but we don’t yet know whether it’s valid or not,” instead of just refering to the given statute as the law?

    Just curiuos.


    Jonathan1 · March 16th, 2010 at 12:26 am
  34. Eric writes:
    Prima facie the specific ouster of religious events or groups from the grounds of public schools (i.e. “Sorry no Christmas parties! But saxophone club is in room 322…”) is a plain violation of the Establishment Clause.

    You mean the Free Exercise Clause, not the Establishment Clause. And there’s a difference between a public school having a “limited open forum” and providing space for student-run clubs that may include religious activities (protected by the Free Exercise Clause), and a school running religious activities itself (prohibited by the Establishment Clause).


    BZ · March 16th, 2010 at 10:00 am
  35. You mean the Free Exercise Clause, not the Establishment Clause. And there’s a difference between a public school having a “limited open forum” and providing space for student-run clubs that may include religious activities (protected by the Free Exercise Clause), and a school running religious activities itself (prohibited by the Establishment Clause).

    This is absoultely true, from a legal standpoint.

    However, I think it was Socrates (BZ probably knows) who asked: Does God say not to murder because murder is wrong, or is murder wrong because God says not to murder?

    The answer to that question is above my pay scale, as they say.

    But, I do have an answer to the question: Should the courts (ie, Constitution) strike down this ordinance because it is detrimental to society, or is this ordinance detrimental to society because it violates the constitution (ie, the courts strike it down.) IMHO, the answer is the first reason.

    Laws, constitutions, courts, democratic systems of government. These are all lifeless instruments, that we use to try to build more just, healthy, loving, vibrant, societies (of course we all disagree about what that kind of society should look like.)

    In other words, this ordinance, even though it’s on the books, (and it has the Constitutional protection to be on the books under the 10th Amendment–nobody has yet explained how that isn’t true, and I don’t know how to phrase it any differently to meet Sam’s exacting language standards,) is wrong and shoudn’t be enforced, if possible.

    Similarly, those First Amendment provisions (again, I don’t know how else to phrase these things to meet those exacting standards) make all sorts of differentiations between limited-open forums and what not, but it’s still wrong to stop Christmas celebrations in schools, and we shouldn’t, if possible.


    Jonathan1 · March 16th, 2010 at 10:53 am
  36. Jonathan1 writes:
    Similarly, those First Amendment provisions (again, I don’t know how else to phrase these things to meet those exacting standards) make all sorts of differentiations between limited-open forums and what not, but it’s still wrong to stop Christmas celebrations in schools, and we shouldn’t, if possible.

    Ok, and here’s where we disagree (and not because I think the Constitution is infallible). Even if we were rewriting the First Amendment from scratch, I would still want to maintain the balance between establishment and free exercise, and would still think it’s a good idea to distinguish between Christmas celebrations run by public schools and Christmas celebrations run by student groups meeting in public schools.


    BZ · March 16th, 2010 at 11:30 am
  37. Fair enough. So, we don’t actually disagree on the principle.


    Jonathan1 · March 16th, 2010 at 12:11 pm
  38. IRT the Girl Scouts example: Government sponsorship of religion is not good, but what they did did not fall under that category because they: a. were not an explicitly religious organization, and b. were not doing an explicitly religious activity. I think we can recognize a common-sense approach to activities being done in public schools without compromising on the basic principle.


    B.BarNavi · March 16th, 2010 at 2:23 pm
  39. Jonathan1, lawyers frequently use the term “struck down,” but it still isn’t technically correct. I also say that the sun rises even though, technically, the part of Earth where I’m standing is simply rotating to face the sun.

    Lawyers know that it is always at least a little uncertain whether a law will be struck down by courts. But they make predictions. For example, they may say “that law is constitutional/enforceable/valid” or “that law is unconstitutional,” when really they mean “if this law is challenged, the highest available court will likely uphold it” or “if this law is challenged, the highest available court will hold that it is unenforceable.” When it’s difficult to say, they will say “we’re not sure whether that law is constitutional.”

    When lawyers believe that a law is unconstitutional or of questionable constitutionality, they may advise their clients to take a different approach than if the law is valid. The most obvious example is when the client actually sues to prevent enforcement (or breaks the law, and then uses the Constitution as a defense against enforcement). This would be a waste of time and money if the law was very likely to be upheld. It wouldn’t necessarily be a waste of time and money if it wasn’t likely to be upheld. Another example is professional ethics: lawyers’ ethical codes generally require them to obey municipal, state, and federal laws. They get an exception when they have a reasonable argument that a law is unconstitutional, break the law, and then challenge its enforcement.

    This is the difference I see between the situation in this blog post, and the situation where a public school hosts a Christmas assembly. The Supreme Court has held that public schools actively engaging in religious-themed activities violates the Establishment Clause because it endorses a religion (hosting an atheist assembly would as well, as it discourages a religion). It’s come out with several opinions on this matter, and its reversing course is pretty unlikely. But it’s equally likely that the Supreme Court would not uphold a law that prevented people from gathering to study the Bible in a private home (so long as it didn’t violate neutral laws like building maximum occupancy requirements). This arises from the Establishment Clause/Free Exercise Clause distinction. I also would argue that there’s a moral difference between the two, as the Christmas assembly violates my religious liberty interest (in not having my tax dollars used for religious purposes with which I may disagree, and in raising my children the way I want to), but I have no legitimate interest in preventing private individuals from voluntarily studying the Bible.


    Sam · March 18th, 2010 at 8:11 am
  40. Also, seconding BZ on open-forum law: public schools may allow student or community groups to conduct religious activities on school grounds, so long as that opportunity is open to everyone subject to viewpoint-neutral rules. If you allow a Christian group to use school grounds, you must allow a Jewish, Muslim, Pagan, Satanic, or atheist group. And, most likely, a gay/straight alliance or a Communist group (It appears that the school can still ban groups that advocate hatred or are deemed inappropriate for minors, though, since these could lead to massive disruption of school functions, so the Nazi groups and porn aficionado groups have to find some other place to meet). The school also has to distance itself from the activities of the group – you can’t simply call your Christian club an independent student group if 90% of the teachers and administrators join, for example, and it looks like they’re paying attention to which students do as well.


    Sam · March 18th, 2010 at 8:19 am
  41. @Sam.

    Ok. (I also use the term “the sun rises,” btw, so maybe this is a symptom of my pedistrian nature.)

    In any case I also would argue that there’s a moral difference between the two is my point. This discussion, or that other discussion, is based on our moral/philosophical beliefs, not on upholding the Constitution.

    To demonstrate this, I attempted to point out that some here (me) advocate the violation of the Constitution, in allowing public-school Christmas celebrations.

    Others here (everybody), advocate the violation of the Constitution, in encouraging this prayer groups to continue to meet, despite the fact that city codes violate such meetings.

    This IS A Constitutional VIOLATION because the American system of government is based on the U.S. Constitution that was ratified in 1791. (I believe that was the year when Vermont accepted it. If not, it doesn’t change the point, and if the word “ratified” is not exactly accurate, we all know what it means, so we won’t need any technical clarifications.)

    In any case, under that U.S. Constitution, the 10th Amendment states that: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This means that the city council has the constitutional authority to pass ordinances in Gilbert, Arizona. The council also has the obligation to pass ordinances that do not violate the 1st Amendment. So, we have to work under the assumption that these council members decided that, in their opinion, this ordinance does not violate the 1st Amendment. Hence, this law is constitutioanlly valid.

    If a challenge to this law goes before the courts, which decide that it is unconstitutional, then it will no longer be a Constitutional violation for these prayer groups to meet.

    However, I think more clarification is requied (at least for me) as to the theory that laws have no constitutional validity until the courts deem it so. Does this mean that the people should ignore/not follow Congressional and legislative statutes, or Executive orders, until the courts have had the opportunity to assesss such acts’ constitutional validity? (If that’s the case, we would have a very confused society because, due to the appeals process, each and every new law/act would have to be delayed until the U.S. Supreme Court either considered the law/act, or denied a petition for certiorari on the matter.)

    So, is that how the system is supposed to work?


    Jonathan1 · March 18th, 2010 at 11:42 am
  42. fact that city codes violate such meetings.

    I meant “prohibit.” Excuse me.


    Jonathan1 · March 18th, 2010 at 12:20 pm
  43. Others here (everybody), advocate the violation of the Constitution, in encouraging this prayer groups to continue to meet, despite the fact that city codes violate such meetings.

    It’s the other way around. I think this application of the city code violates the Constitution. It’s certainly true that it hasn’t been adjudicated yet, but to say that this seems to violate the Constitution is not the same as saying I advocate the violation of the Constitution.

    It seems like you’re saying nobody gets to have an opinion until the case goes to the Supreme Court.

    And again, I’d remind you that Gilbert’s city code also needs to conform to Arizona state law and the Arizona constitution, which in this instance, it may not. So again, this could get struck down without federal constitutional issues (the first OR the tenth) coming into it at all.

    Local governments violate state laws and even constitutions all the time. For pragmatism, we have to generally operate as if the laws are valid, but even in pragmatic reality, there’s a constant stream of lawsuits determining the boundaries of what is and isn’t okay. City Councils appear to violate the open meetings act, and newspapers or citizens groups sue and case law is generated. Someone is arrested, and the detainee feels the state didn’t have probable cause and they sue and case law is generated.

    But you know what else happens? City attorneys sit down with city councils and tell them “Guys, we’re going to lose this one. Let’s just settle.” Just because a city council does something doesn’t mean everybody involved in the decision really sat down and thought about all the legal issues involved. This Gilbert decision didn’t even get made at the city council level. It was an unelected bureaucrat.

    Sure, if this goes to court, it ultimately will be judges who make this call. But for me – or anyone – to say I think Gilbert is in the wrong both legally and morally is not remotely calling for the violation of the Constitution.


    em · March 18th, 2010 at 2:39 pm
  44. But for me – or anyone – to say I think Gilbert is in the wrong both legally and morally is not remotely calling for the violation of the Constitution.

    If you are calling for these prayer groups to meet, in violation of Gilbert law, then indeed you are calling for a violation of the U.S. Constitution. Don’t worry, it’s not that big of a deal. That’s my point. Just like it’s not that big of a deal that those Girl Scouts made Christmas magnets, even though that violated the Constitution too.

    It’s certainly true that it hasn’t been adjudicated yet, but to say that this seems to violate the Constitution is not the same as saying I advocate the violation of the Constitution.

    Of course we all have our own opinions as to what violates the Constitution. But, there is a system of government in the U.S., which is based on the Constitution. If you are calling for a violation of one of the laws passed within the rules of that Constitutional system, then indeed you are calling to violate the Constitution.

    So again, this could get struck down without federal constitutional issues (the first OR the tenth) coming into it at all.

    The state of Arizona has the right to a constitution because of the 10th Amendment, btw.

    Local governments violate state laws and even constitutions all the time

    Oh really????? According to who? Jonathan1? em? BZ? KFJ? Victor?

    We have to accept that politicians pass laws that, in their opions, are constitutionally valid, or the entire system of government would fall apart.

    Answer me this question: Does this mean that the people should ignore/not follow Congressional and legislative statutes, or Executive orders, until the courts have had the opportunity to assesss such acts’ constitutional validity? (If that’s the case, we would have a very confused society because, due to the appeals process, each and every new law/act would have to be delayed until the U.S. Supreme Court either considered the law/act, or denied a petition for certiorari on the matter.)

    Is that how the system should work? Because if not, you are conceding that the Gilbert ordinance is indeed constitutionally valid.


    Jonathan1 · March 18th, 2010 at 3:08 pm
  45. Local governments violate state laws and even constitutions all the time

    Oh really????? According to who? Jonathan1? em? BZ? KFJ? Victor?

    According to your precious courts.

    Newspapers I’ve worked for regularly sue for access to public records that were denied to us, even though our reading of the public records law says that we should have been given the documents.

    When the courts rule that the city/county/state has to turn over the documents and pay our attorney’s fees, they are saying that the city/county/state violated the law.

    When we sue over an open meetings violation, and the city council/board of supervisors/legislature has to turn over a transcript of the meeting in question, the courts are saying the city/county/state violated the law.

    When a defendant sues and claims there was no probable cause for his arrest, and that defendant is awarded damages, the courts are saying the state violated the law.

    When a federal judge ordered Arizona to increase its funding for English as a second language education, he was saying the state was violating the constitutionally protected civil rights of non-English speaking students.

    This happens all the time. This is part of our system. It’s not some weird separate thing outside of our system.


    em · March 18th, 2010 at 3:39 pm
  46. Answer me this question: Does this mean that the people should ignore/not follow Congressional and legislative statutes, or Executive orders, until the courts have had the opportunity to assesss such acts’ constitutional validity? (If that’s the case, we would have a very confused society because, due to the appeals process, each and every new law/act would have to be delayed until the U.S. Supreme Court either considered the law/act, or denied a petition for certiorari on the matter.)

    Is that how the system should work? Because if not, you are conceding that the Gilbert ordinance is indeed constitutionally valid.

    When someone thinks a law is wrong, they have a few choices. They can follow it in the interim while seeking redress in the courts. They can disobey, get arrested/pay a fine, and litigate the thing that way – with the state as the prosecutor/plaintiff. Or they can just obey it and do nothing. The first two are both ways of seeking a determination of a law’s validity. Again, this happens all the time and is a regular part of our system. It is what is in process in Gilbert right now. Our system has not collapsed yet.

    As I said before, for practicality, most laws don’t go through some sort of court process. We’re basically, on a societal level, stipulating that those laws are constitutional. If you want to say that means they ARE constitutional until proven otherwise, it strikes me as semantics, but fine.

    I am not aware, though, of any “presumption of constitutionality/validity” that gets applied to laws before there is any litigation over them or which challengers have to overcome with some burden of proof, not aware of any parallel to the presumption of innocence granted to criminal defendants. If you are aware of one (a cite please, not more semantics) or if Sam wants to weigh in here, that’s cool.


    em · March 18th, 2010 at 3:52 pm
  47. @em. You are proving my point for me!!!!!!!

    Except, you are refusing to concede that the system is set up so that the people elect the politicians, who pass the laws. That’s the constitutional system. The courts then have the ultimate power to decide if those laws violate the Constitution. That’s the system (from Marbury, so BZ won’t catch me.)

    If a law is on the books, and if a court hasn’t struck it down, then it’s the law (for example, the Gilbert statute.) That’s the system. And, if you break that law then you are violating the Constitution. That’s just the way the system works.

    But, like I said, it’s not that big of a deal to violate the Constitution. People do it all of the time. Like those magnet-making Girl Scouts.


    Jonathan1 · March 18th, 2010 at 3:53 pm
  48. I am not aware, though, of any “presumption of constitutionality/validity” that gets applied to laws before there is any litigation over them or which challengers have to overcome with some burden of proof, not aware of any parallel to the presumption of innocence granted to criminal defendants. If you are aware of one (a cite please, not more semantics

    Most of the stuff in there:

    www.gpoaccess.gov/uscode/


    Jonathan1 · March 18th, 2010 at 3:55 pm
  49. You know what, this is how you could to it:

    You can hold the meetings (and by doing so break the law and violate the Constitution) and then if the law is repealed retroactively, or if the courts strike it down retroactively (under the Young case that Sam provided) then you will be able to sleep with a clean conscience.


    Jonathan1 · March 18th, 2010 at 4:07 pm
  50. Except, you are refusing to concede that the system is set up so that the people elect the politicians, who pass the laws. That’s the constitutional system. The courts then have the ultimate power to decide if those laws violate the Constitution. That’s the system (from Marbury, so BZ won’t catch me.)

    Hmm. I’m not so much refusing to concede it as treating it as self-evident. I think we are talking past each other. I also think you are using “constitutional” in a way that that word is not normally used, but it seems really important to you.


    em · March 18th, 2010 at 4:41 pm
  51. You know what, this is how you could to it:

    You can hold the meetings (and by doing so break the law and violate the Constitution) and then if the law is repealed retroactively, or if the courts strike it down retroactively (under the Young case that Sam provided) then you will be able to sleep with a clean conscience.

    Right. Like I said:

    When someone thinks a law is wrong, they have a few choices. They can follow it in the interim while seeking redress in the courts. They can disobey, get arrested/pay a fine, and litigate the thing that way – with the state as the prosecutor/plaintiff. Or they can just obey it and do nothing. The first two are both ways of seeking a determination of a law’s validity. Again, this happens all the time and is a regular part of our system. It is what is in process in Gilbert right now. Our system has not collapsed yet.

    You’re proving my point for me!!!!!


    em · March 18th, 2010 at 4:46 pm
  52. :)

    I also think you are using “constitutional” in a way that that word is not normally used, but it seems really important to you

    Fine. It’s not normally used because we usually mention the Constitution in the big, controversial cases. We just take for granted that the entire sytem of government is based on the Constitution. So, correct, I see no difference (from a theoretical, if not practical standpoint) in driving through a red line or in banning all abortion in a state–both acts are constitutional violations, ultimately.


    Jonathan1 · March 18th, 2010 at 4:52 pm
  53. Jonathan1, merely because the Constitution authorizes states to pass laws, doesn’t make violating any particular law is not a Constitutional violation. Especially if the law is void under the Constitution anyway (which, as I mentioned earlier, is true of unconstitutional laws from the outset, not just when a court holds that it’s void. There is a rather major conceptual difference between “valid until struck down” and “of semi-indeterminate validity until tested in court.”).

    First, the only way a private individual, not acting in connection with the government, can violate the Constitution is by violating the 13th Amendment. The other articles and amendments describe the powers and authorities of the federal and state governments and individual rights are described in terms of what the government can’t do to private citizens. Second, simply violating a state law because you think it’s unconstitutional or wrong isn’t even inconsistent with acceptance of the 10th Amendment, as it’s not inconsistent with accepting that states, generally, have the authority to pass laws not inconsistent with the Constitution or federal law. If I believe that a state law is unconstitutional, and thus not authorized by the 10th amendment, my refusal to follow it isn’t an intentional violation of the overall law of the land, even if it turns out that I was wrong. If I were correct, there would be no legally valid law that I was violating. It’s similar to if I were to disobey a person who claims to be a police officer when I erroneously believe that the person is lying about being a police officer.

    Here’s an example. I can seek federal habeas corpus relief for imprisonment that somehow violates the Constitution – say, I’m being treated in a way that violates my 8th Amendment right against cruel and unusual punishment. Suppose, though, that my imprisonment violated state law, but not federal law – perhaps the prison is in violation of various minor state prison codes, or something else that clearly doesn’t rise to the level of an 8th Amendment violation. I can’t sue in federal court by saying that the prison’s violation of the state law somehow violates the 10th Amendment. Although it’s a clever argument.


    Sam · March 19th, 2010 at 10:02 am
  54. @Sam. Especially if the law is void under the Constitution anyway (which, as I mentioned earlier, is true of unconstitutional laws from the outset, not just when a court holds that it’s void. There is a rather major conceptual difference between “valid until struck down” and “of semi-indeterminate validity until tested in court.”).

    And as we all agree, the courts make that determination. Thus, until a court declares a law void from the outset (or if a lawmaking body retroactively voids a law) then that law is not void. Under the present system of government, individual citizens do not possess the same power that we grant the courts under judicial review. If that were the case, then I’d be able to determine that my jurisdiction’s sales tax increase is unconstitutional, and I’d refuse to pay those taxes on each trip to the store, and I’d be constitutional protected to act as such.

    Are you (or your spouse) pregnant?

    I ask because I imagine the answer would be either yes or no. Similarly, either a law is constitutionally valid (which means the people are supposed to abide by it, technically) or it isn’t (which means that nobody has to abide by it.) Do citizens need to follow “semi-indeterminately valid laws?” If they do, such laws are valid. If not, they aren’t. It’s that simple. Are you clamining that we need not abide by the thousands of laws that have never been challenged in a court?

    The other articles and amendments describe the powers and authorities of the federal and state governments and individual rights are described in terms of what the government can’t do to private citizens.

    Under what power does Congress pass legislation if not Article I of the U.S. Constitution?

    Second, simply violating a state law because you think it’s unconstitutional or wrong isn’t even inconsistent with acceptance of the 10th Amendment, as it’s not inconsistent with accepting that states, generally, have the authority to pass laws not inconsistent with the Constitution or federal law.

    Under what power do the states have to pass laws if not the 10th Amendment to the U.S. Constitution?

    If I believe that a state law is unconstitutional, and thus not authorized by the 10th amendment, my refusal to follow it isn’t an intentional violation of the overall law of the land, even if it turns out that I was wrong

    It most certainly is an intentional violation of the overall law of the law. You just happen to think that this particular law is unconstitutional.

    It’s similar to if I were to disobey a person who claims to be a police officer when I erroneously believe that the person is lying about being a police officer.

    No. It’s similar to if an authentic police officer (and you know he/she is indeed the police) were to attempt to search your car as part of a traffic stop, which they thought was a legal search, and you refused to cooperate, because you thought the police were violating your rights under Gant. Until a court agrees with you, you indeed were breaking the law.

    I can’t sue in federal court by saying that the prison’s violation of the state law somehow violates the 10th Amendment

    Again, from where does state law derive its authority if not the 10th Amendment.

    @Sam. You are making many interesting points about the procedural process of upholding the law, and nobody is disagreeing with you on those points. However, you aren’t admitting that the U.S. Constitution is the basis of the entire system of government. So, if you go against a part of that system, you are ultimately violating the U.S. Constitution. Or, you can provide us a different theory as to what is the framework of the American system of government? . . .


    Jonathan1 · March 19th, 2010 at 11:13 am
  55. Especially if the law is void under the Constitution anyway

    And, maybe part of the disagreement here is because Sam is an attorney (and he/she seems like a good one) he/she might be thinking a bit more strictly on how to manipulate the law in a way that suits him/her.

    Bottom line is: there is no such thing as a “Constitutional” or “Unconstitutional” law. This isn’t like proving that 3+3=6. There are hundreds of thousands of people in America, who kind make strong, distinct arguments as to why any particular law is constitutional valid or not.

    But, if the system is to work, then we have to accept that the people elect the politicians, who pass the laws, and the people are supposed to folllow those laws, unless the politicians change the laws or if the courts decides that such laws are unconstitutional (the judges might be wrong too, for there are no real answers to such questions, but we follow their opinions nonetheless, or the entire system would fall apart.)


    Jonathan1 · March 19th, 2010 at 11:38 am
  56. Jonathan1, again, you’re wrong that the law can’t be unconstitutional “until” it’s declared so by a court. When a court declares a law unconstitutional, it is saying that the law was never valid. In that case, every single person who failed to follow the law before the court declared it unconstitutional, was not breaking the law of the land, because that law was not actually a valid law.

    When you break a law that you think may be constitutional, you’re doing so at your own hazard. You are risking that a court will disagree with you. But if the court DOES eventually agree with you, you will not have been breaking a valid law. This is why it’s important to look to what courts have said in the past, not just your own reading of the Constitution, since what courts have said in the past about laws is a pretty good indicator about what they’ll say in the future. That way, you can decide whether or not the risk is worth it.

    This is why it’s a bad idea to simply declare that the sales tax is unconstitutional and not pay it. It’s not that it’s always wrong to refuse to abide by laws you consider unconstitutional, but it’s wrong to do so frivolously and without any reasonable basis to think you’ll prevail in your constitutional argument.

    The pregnancy analogy is a good one. Within the first three months or so, it’s difficult to tell if one is pregnant without taking a pregnancy test. But the positive pregnancy test doesn’t make me pregnant or not pregnant, it just confirms that I’m pregnant or not pregnant. I can’t drink and smoke under the theory that I’m not pregnant until a pregnancy test declares that I am. I have to come up with an educated guess on my own as to whether or not I’m pregnant, and every time I drink and smoke, I do so at the hazard of being wrong about my pregnancy status. But despite the fact that birth control (and, if you’re Christian, even abstinence ;p) occasionally fails, usually people can be pretty sure whether or not they are likely to be pregnant, and make educated decisions about how to behave without constantly taking pregnancy tests.

    I’m not disagreeing with you that the 10th Amendment authorizes states to pass laws and Article I authorizes congress to pass laws. They certainly do. I generally acknowledge their Constitutional power to do so. I’m disagreeing with your leap between “the 10th Amendment authorizes states to make legislation” and “breaking a valid state law is in fact breaking the 10th Amendment.” Most reputable Constitutional law scholars, as well as the courts, would tend to agree with me on this distinction. As I pointed out, it’s a distinction that actually matters in a lot of situations where the legal consequences of a Constitutional violation and a violation of laws are different. I can see how refusing to acknowledge the authority of state legislatures to pass laws would imply a disregard for the 10th Amendment, but simply saying “I think this law is unconstitutional and therefore not authorized by the 10th Amendment” is, per se, not showing any disregard for the 10th Amendment, it’s just an opinion on how it applies in a particular case.


    Sam · March 21st, 2010 at 11:38 am
  57. and yes, I am a lawyer and that makes me somewhat better at advocating for my position on how the law should be interpreted. But another important part of being a lawyer is recognizing what the likely outcome will be and when an argument is just “out there.” We can get disciplined for making frivolous or baseless legal arguments before a court. If I were to go to court and argue that violating a state law was actually a violation of the 10th Amendment because the 10th Amendment authorized the state law, I’d probably get disciplined. It’s just not true.


    Sam · March 21st, 2010 at 11:50 am
  58. But another important part of being a lawyer is recognizing what the likely outcome will be and when an argument is just “out there.

    Yes, but we are not in court, and you are not represented any of us, so that task is not relevant here. We are discussing theory.

    I generally acknowledge their Constitutional power to do so. I’m disagreeing with your leap between “the 10th Amendment authorizes states to make legislation” and “breaking a valid state law is in fact breaking the 10th Amendment.” Most reputable Constitutional law scholars, as well as the courts, would tend to agree with me on this distinction

    Ok. This is just where we disagree (and I have no problem disagreeing with reputable Constitutional law scholars or courts, btw.)


    Jonathan1 · March 21st, 2010 at 5:33 pm
  59. Most reputable Constitutional law scholars, as well as the courts, would tend to agree with me on this distinction

    And, frankly, Sam, I would be curious to read some sources on this( ie, which courts and “reputable” Constitutional law scholars disagree that the Congress has authority to pass laws under Article I, the states have authority to pass laws under the 10th Amendment, or that Article VI states that the Constitution, and the laws made under it, are the supreme law of the land, and that judges and courts in every state will follow the Constitution.)

    And, because there seems to be an implication that our qualification give credence to our arguments here, for the record, I happened to have studied the law at an institution where many “reputable” scholars taught, and I am a member of the Israel and New York bars (although it should be obvious that I never really practiced.)


    Jonathan1 · March 21st, 2010 at 6:01 pm

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"I may attack a certain point of view which I consider false, but I will never attack a person who preaches it. I have always a high regard for the individual who is honest and moral, even when I am not in agreement with him. Such a relation is in accord with the concept of kavod habriyot, for beloved is man for he is created in the image of God." —Rav Joseph Soloveitchik