Various & Sundry, 4/7/15

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I hope everyone is having a happy and blessed Easter.

– Rand Paul has officially entered the 2016 presidential race. There’s a long way to go, and at this point there are a number of candidates I could see myself supporting. He is not one of them. There are myriad reasons why, and he gave me another one today.

– Kevin Williamson with a typically brilliant column, which concludes thusly:.

“I expect to die in bed,” Francis Eugene Cardinal George famously remarked. “My successor will die in prison, and his successor will die a martyr in the public square. His successor will pick up the shards of a ruined society and slowly help rebuild civilization, as the church has done so often in human history.” Perhaps it will not come to that. But we already are on the precipice of sending men with guns to the homes and businesses of bakers to enforce compliance with dictates undreamt-of the day before yesterday. Yes, render unto Caesar, and all that. But render only what is Caesar’s — and not one mite more.

– Speaking of the Indiana RFRA law, I do have to agree with Andy McCarthy’s analysis. The federal RFRA was an overwrought reaction to what was a correctly decided Supreme Court case. Naturally this does not justify the over-reaction to the Indiana law, but we do need to have some perspective, as McCarthy explains the original legislation’s history:

It should be no surprise, though. RFRA was an unfortunate reaction, by an odd combination of conservative religious leaders and opportunistic statists, to a 1990 Supreme Court decision, Employment Division v. Smith, written by Justice Antonin Scalia, a brilliant conservative jurist (and, for what it’s worth in this context, a devout Catholic). The statute’s enactment was triggered in 1993, when the Court reaffirmed Smith in Church of Lukumi Babalu Aye v. City of Hialeah. These cases stand for the principle that the First Amendment does not provide a religion-based exemption from compliance with a law of general application that is religion-neutral — i.e., a law that applies to everyone equally and does not discriminate against adherents of a particular religion.

Moreover, RFRA does not provide a principled, knowable carapace of religious freedom. Rather, it transfers the power to decide what religious convictions will be respected from where it belongs, in the hands of free people through their elected representatives, to where it should not reside, in the whims of politically unaccountable judges whose sensibilities often differ widely from the community’s sensibilities. When someone claims a law burdens religion, RFRA imposes a test: The government must prove that the law serves a compelling public purpose and represents the least burdensome manner of doing so. There is no reason to believe judges are better equipped to perform that balancing than legislatures; and there is nothing about a law degree that makes a judge a suitable arbiter of which tenets of your faith outweigh the government’s interests, and which do not. Furthermore, if a legislature strikes the wrong balance, its statute can be amended with comparative ease; reversing a court’s error in defining the parameters of a constitutional right is extraordinarily difficult.

As McCarthy explains, the fact that the likes of Ted Kennedy supported the federal RFRA is reason enough to make conservatives suspect the wisdom of it.

– So Rolling Stone has retracted its UVA rape story and is on the cusp of being sued. Good. Let me just add that as the father of three (soon to be four) girls, those who lie about rape are utterly repellent, for they make it that much more difficult for those who were raped.

– Sally Kohn might be one of the dumbest pundits alive, and that’s saying something.

In a column for TPM, liberal media personality Sally Kohn asserted that it makes no sense to say the government is forcing people of faith to violate their consciences, because government can’t force you to do anything:
You may have heard that the government is forcing businesses not to discriminate. It isn’t. If you chose to run a business, you have to follow the laws. If you don’t, that’s a choice—and you choose to suffer the consequences.
Kohn, who has a law degree from NYU, carried her theory even further, stating that members of the police force aren’t really using force to enforce the law unless they put a gun to your head:

This issue of government force is a funny one. You could also argue that the government is forcing you to drive below the speed limit or wear a seatbelt in your car. But it’s not. There isn’t a police officer holding a gun to your head literally forcing you to buckle up. In fact, you are 100 percent free to speed and not wear your seatbelt—and simply deal with the consequences if you’re pulled over. Is the threat of the fine for breaking the law amount to “forcing” you to follow the law? No.
Eric Garner, who was choked by Staten Island police and later died at the scene of his arrest for selling untaxed cigarettes, might disagree with Kohn’s description of what does and doesn’t constitute force. Unfortunately, Kohn fails to see the linguistic hints embedded in the words we use to describe how government compels legal compliance.

More to explorer

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Fifty Years

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Deep State? What Deep State?

Surprise!:     Who would have thought that, this deep into the Russia collusion probe, we’d be learning about yet another dossier

7 Comments

  1. I hope people will “just say No” to Ron Paul.
    I hope they say No soon so that the other more worthy candidates can actually make traction without having to go through the silly libertarian stuff.
    If there ever was a time that libertarianism was called for this is NOT IT.

  2. Thank you for the link to Andy McCarthy’s interesting article on the RFRA.

    In European jurisprudence, an important part of religious freedom is the principle that an individual’s opinions are no concern of the public authorities. Hence, the sanctity of the “forum internum” and the principle that no one is obliged to disclose his or her opinions to a public official. The European Court of Human Rights, for example, has systematically struck down laws requiring the inclusion of an individual’s religious denomination on identity cards or its compulsory disclosure in a census.

    Religious freedom means that an individual’s religious beliefs should have no intervention in or impact on the relations between that individual and the public authorities. This means, too, that there are common rules governing those relations for, if there are different rules for members of different religious groups or communities (as in the Ottoman millet system), in what sense is the Republic one and indivisible?

    For this reason, the French Constitutional Council dismissed a challenge to the law banning the wearing of the hijab or other conspicuous religious symbols in public schools as an infringement of religious freedom in a single, laconic sentence: “But considering (attendu) that the Law of 15 March 2004 concerns itself with actions, not opinions, for this reason (motif) rejects.”

  3. Sally Kohn’s argument is not dissimilar to that of a number of 17c moral theologians who, influenced no doubt by the horrors of the Wars of Religion, maintained that disobedience to lawful authority was never justified. Accordingly, they distinguished between “active obedience,” or obtempering a command and “passive obedience,” or accepting the sanction or penalty imposed for disobedience. As this included incurring the penalty for fugitation for avoiding arrest, the distinction between “passive obedience” and outright disobedience was a fine one. Nevertheless, it was supported by theologians of note, especially of the French School.

  4. “Nevertheless, it was supported by theologians of note, especially of the French School.”

    Well then, what further proof do we need that it is a hideously bad idea! 🙂

    I prefer Saint Thomas Aquinas:

    “But, as we have already said, authority may fail to derive from God for two reasons: either because of the way in which authority has been obtained, or in consequence of the use which is made of it.

    There are two ways in which the first case may occur. Either because of a defect in the person, if he is unworthy; or because of some defect in the way itself by which power was acquired, if, for example, through violence, or simony or some other illegal method. The first defect is not such as to impede the acquisition of legitimate authority; and since authority derives always, from a formal point of view, from God (and it is this which produces the duty of obedience), their subjects are always obliged to obey such superiors, however unworthy they may be. But the second defect prevents the establishment of any just authority: for whoever possesses himself of power by violence does not truly become lord or master. Therefore it is permissible, when occasion offers, for a person to reject such authority; except in the case that it subsequently became legitimate, either through public consent or through the intervention of higher authority.

    With regard to the abuse of authority, this also may come about in two ways. First, when what is ordered by an authority is opposed to the object for which that authority was constituted (if, for example, some sinful action is commanded or one which is contrary to virtue, when it is precisely for the protection and fostering of virtue that authority is instituted). In such a case, not only is there no obligation to obey the authority, but one is obliged to disobey it, as did the holy martyrs who suffered death rather than obey the impious commands of tyrants. Secondly, when those who bear such authority command things which exceed the competence of such authority; as, for example, when a master demands payment from a servant which the latter is not bound to make, and other similar cases. In this instance the subject is free to obey or disobey.”

  5. Alas, T Shaw, that reasoning could be applied to just about any one of the other potential nominees, and none of those have the distinction (like Paul) of driving me nuts.

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