Alexander Hamilton Wins: Congress Is All-powerful

"Congress may also 'lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.'" -- Article 1, U.S. Constitution

Chief Justice John Roberts and four liberal justice have written an opinion upholding Obamacare which conclusively demonstrates why the Constitution must be construed consistently with the intent of people who wrote it, but even more importantly, with the intent of the people of the 13 states who voted to adopt it in 1789.

The chief justice begins the majority opinion with a statement of law that nobody who has studied the Constitution could possibly disagree with:

"The Federal Government 'is acknowledged by all to be one of enumerated powers.' That is, rather than granting general authority to perform all the conceivable functions of government, the Constitution lists, or enumerates, the Federal Government's powers. ... The Constitution's express conferral of some powers makes clear that it does not grant others. And the federal government 'can exercise only the powers granted to it.'"

From there, the chief justice, goes on to write an opinion that gives the U.S. government a power to tax so extensive, that had it been so explained by the "Federalists" to voters prior to its 1789 ratification, the people of the 13 states would have overwhelmingly voted against it.

Indeed, the opinion grants Congress an unlimited power to tax for the "general welfare" -- a power that no American in his right mind would have voted for in 1789.

Here are excepts from the opinion that show just what the five-judge majority said.

"The Government advances two theories that Congress had constitutional authority to enact the individual mandate. First, the Government argues that Congress had the power to enact the mandate under the Commerce Clause. Under that theory, Congress may order individuals to buy health insurance because the failure to do so affects interstate commerce, and could undercut the Affordable Care Act's other reforms. Second, the Government argues that if the commerce power does not support the mandate, we should nonetheless uphold it as an exercise of Congress' power to tax."

The court did not sustain the constitutionality of the "individual mandate" under the power to "regulate commerce."

What it said in reference to the Commerce Clause, was dicta unnecessary to its ultimate holding, "The Constitution grants Congress the power to 'regulate Commerce.'

"... The power to regulate commerce presupposes the existence of commercial activity to be regulated. "The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress's actions have reflected this understanding. There is no reason to depart from that understanding now."

The majority clearly held that under the Commerce Clause the Framers "gave Congress the power to regulate commerce, not to compel it."

That much of the opinion was consistent with the the court's earlier statement that government 'is acknowledged by all to be one of enumerated powers." But all that was unnecessary to the ultimate decision.

The five-judge majority rendered its decision relying on the "taxing power" to, in effect, "regulate commerce" to an extent not authorized by the "commerce power" itself:

"There may, however, be a more fundamental objection to a tax on those who lack health insurance. Even if only a tax, the payment under 5000A(b) remains a burden that the Federal Government imposes for an omission, not an act.

"If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something."

So, if the intent of the Framers is important, why isn't the intent of the American people who voted to ratify the Constitution in 1789 even more important? Did they have any inkling in 1789 that in voting to ratify the constitution they were authorizing Congress to impose a tax for not doing something?

Under this holding, Congress has to tax you to "provide for the General Welfare:"

-- If you heat your home with natural gas, or if you don't heat your home with solar panels;

-- If you have children, or if you don't have children

-- If you have too many children or not enough children;

-- If you use contraceptives, or if you don't use contraceptives or if you use too many contraceptives, or not enough contraceptives;

-- If you have an abortion, or if you don't have an abortion;

-- If you eat broccoli, or if you don't eat broccoli.

-- If you are too fat, don't go on a diet

-- If you eat anything the government deems unhealthful;

-- If you breathe, inhale oxygen, or exhale CO2;

-- Or if you die.

Are these the powers Americans in 1789 intended to vest in Congress?

What is the point of creating a government of "enumerated powers," if, by use of the "taxing power," government power is unlimited."

Alexander Hamilton's theory of an unlimited "taxing power" as expressed in his "Report on Manufactures to the House of Representatives" has been taken to the extreme by five justices.

The views of Madison, Jefferson, Calhoun and the American people who voted to ratify the Constitution have been relegated to the ash can.

I now see why the figure of justice is always seen wearing a blindfold: it is so she can't see the damage being done to the original intent of our Forefathers by judges writing the opinions.

Posted Online: July 05, 2012, 5:00 a.m. - Quad-Cities Online

by John Donald O'Shea

Copyright 2012, John Donald O'Shea 

Do Government Dollars Compromise Constitutional Rights?

  Recently, a liberal friend of mine wrote "the public is allowed to set rules ... through its elected representatives and those rules apply to all citizens." In America, that statement is only somewhat true.

Indeed, to insure that it never could be wholly true, our Founding Father adopted the Bill of Rights. But does the statement become true, if the citizen accepts money from the government?

In England, from the time of Henry VIII, often when a new monarch took the throne, the religion of the realm changed. Henry was Protestant. Mary was Catholic. Elizabeth I was Protestant. Charles I favored Catholics. Americans in 1789 wanted nothing to do with changing their religions every time the majority in Congress changed.

The First Amendment was designed to insure that religion was beyond the power of each new majority in Congress to "esRecently, a liberal friend of mine wrote "the public is allowed to set rules ... through its elected representatives and those rules apply to all citizens." In America, that statement is only somewhat true.

Our Bill of Rights (the first 10 Amendments to the Constitution) exists for the primary purpose of putting certain rights that James Madison and his contemporaries deemed essential to a free America beyond the power of the majority and their elected representatives to change. Indeed, those amendments has always denied the federal government power to do any of the following:

-- Designate a "state religion," or specify how Americans should worship. Such a law would run afoul of the "establishment" and "free exercise of religion" clauses of the First Amendment.

-- Prohibit individuals or the press from criticizing the president, Congress or the Supreme Court. This would run afoul of the First Amendment guarantees of free speech and free press.

-- Abolish the right to bear arms, as guaranteed by the 2nd Amendment.

-- Order the quartering of troops in private homes in time of peace, as prohibited by the Third Amendment;

-- Authorize the government to conduct indiscriminate searches and seizures in the absence of probable cause as required by the Fourth Amendment.

-- Take property for public use without paying just compensation as required by the Fifth Amendment;

-- Abolish the right to jury trial, and speedy and public trials in criminal prosecutions, as guaranteed by the Sixth Amendment

-- Impose cruel and unusual punishments as prohibited by the Eighth Amendment.

Were my friend to give the matter further thought, I'm confident he would concede that the Bill of Rights prevents the majority from changing our rights therein guaranteed. Still, he would probably argue that, "If the church accepts money (from the government) for its quasi-public activities, it must follow whatever rules the elected representatives of the public choose to apply to all citizens."

I think that statement is equally overly broad. By "quasi-public activity," he no doubt means universities, hospitals, and charities that provide adoption services. But hasn't the church for 1,000 years, and for centuries before our Constitution was adopted, considered these as part of its religious mission to love our fellow men and to teach all nations?

So does a church forfeit its First Amendment rights if the church accepts money? If so, how much money may it accept before it surrenders its rights? -- that is, before it must "follow whatever rules the elected representatives of the public choose to apply to all citizens?"

If the University of Notre Dame accepts a nickel from the U.S. government, must it provide to its employees and students insurance that provides coverage for contraceptives and abortifacients?

What if it accepts payments of tuition under a federal loan? What if it accepts tuition for ROTC students paid by the U.S. Navy? What if the university and the state share the cost of construction of a new road to alleviate traffic congestion on football Saturdays? What if it accepts the benefit of having its property tax exempt?

If any of these things result in forfeiture of rights, Notre Dame should have lost its First Amendment rights long ago. That First Amendment provides "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."

Note there is nothing in the amendment, stating "except if the church accepts money for its quasi-public activities."

By accepting Social Security benefits or a state pension, have I forfeited my right to the "free exercise" of my religion? To free speech? If I don't, why would the church, absent a clear warning that that was the consequence?

There is no question that the government must have the right to legislate to protect the public. But when that power impacts upon the free exercise of religion, that power must be used delicately. That is the rule stated in the U. S. Supreme Court case of Cantwell v Connecticut (1940): "In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom."

Congress' power to protect the public from cannibalism would certainly trump a church's practice of cannibalism.

A president's desire to make contraception and abortion widely available would seemingly permit far less infringement.

Of course, when it comes to money, Congress can always offer a church a choice:

You can take our money, or refuse it. If you take it, these are the strings!

Posted Online:  June 19, 2012, 2:31 p.m - Quad-Cities Online

by John Donald O'Shea
Copyright 2012
John Donald O'Shea

While President's Fiddled, Social Security System Burned

The Roman Emperor, Nero, is reputed to have “fiddled while Rome burned.” Historians may well say something similar of Presidents Bush and Obama.    

 

On May 3, 2001, President Bush called for Social Security reforms. He appointed a 16- man commission (8 Republicans and 8 Democrats) to make to recommendations to insure the solvency of the System. 

 

Though the committee was to be co-chaired by Sen. Daniel Patrick Moynihan (D-NY. Ret’d), President Bush was instantly assailed for creating a “commission with a "skewed mandate and one-sided membership." In the face of intense vitriolic Democratic criticism, 

 

President Bush “punted.” His successor, rather then fielding the “punt” has not even taken the field. 

 

President Obama, rather than acting to fix Social Security and Medicare, has devoted 

his energies to creating a third huge entitlement: “Obamacare.”

 

In April of 2012, the Trustees issued their 2012 ANNUAL REPORT ... OF THE 

FEDERAL OLD-AGE AND SURVIVORS INSURANCE AND FEDERAL DISABILITY

INSURANCE TRUST FUNDS. To understand the report, you first need to understand 

how Social Security is set up. 

 

 

Social Security has two trust funds:

(1) Old-Age and Survivors Insurance (“OASI.”). This program pays monthly benefits to retired workers, their families, and survivors of deceased workers.

 

(2) Disability Insurance (“DI.”). This program pays monthly benefits to disabled workers and their families.

                        

The two components when taken together are referred to as “OASDI,” or Old-age, 

Survivors and Disability Insurance. 

 

At the end of 2011, the OASDI program was providing benefits to about 55 million people: 

• 38 million retired workers and dependents of retired workers.

• 6 million survivors of deceased workers. 

•11 million disabled workers and dependents of disabled workers.

Total expenditures in 2011 were $736 billion.

Total income in 2011 was $805 billion:

• $691 billion in non-interest income (payroll taxes + general fund transfers). 

• $114 billion in interest earnings.

Social Security also holds assets of $2.7 trillion in special issue U. S. Treasury securities (IOUs). Even if Social Security had no income, those assets would be sufficient to cover current expenditures ($736 billion per year) for just under 4 years. 

            

The 2011 expenditures of $736 billion exceed the non-interest income of $691 billion by $45 billion. That shortfall was occasioned by President Obama’s  “Payroll Tax Holiday” --even though payroll tax reduction law required the General Fund “replicate” the lost payroll taxes - “to the extent possible.”  That “replication” was $45 billion short. 

 

The  trustees report runs 247 pages, with many appendices. Here are key excerpts from TABLE VI.F7 -- Operations of the Combined OASI and DI Trust Funds, in CPI - indexed 2012 Dollars (in Billions), Calendar years 2012 -2090.

 

Intermediate Cost Estimates:

Calendar year           Total Income             Cost                Assets at End of Year

2012                           $846.0                        $788.7            $2,735.2

2016                           $952.8                        $910.2            $2,678.2

2021                           $1,082.5                    $1,088.9        $2,463.4

2025                           $1,146.3                    $1,250.6        $1.950.3

2030                           $1,174.8                    $1,442.7        $724.4

 

Under the Intermediate Cost Estimates the combined fund assets are exhausted in 2033.

 

 

High Cost Estimates:

 

Calendar year           Total Income             Cost                Assets at End of Year

2012                           $837.6                        $791.4            $2,724.1

2016                           $880.7                        $917.4            $2,367.1

2021                           $959.5                        $1,100.1        $1,556.8

2025                           $958.9                        $1,249.2        $460.4

            

Under the High Cost Estimates the combined fund assets are exhausted in 2027.

            

“Total Income” has two components: Non-interest Income and Interest Income. Non-interest income consists of payroll tax contributions, income from taxation of benefits, and reimbursements from the General Fund of the Treasury, if any.

            

“Cost” consists of benefit payments, administrative expenses, financial interchange with the Railroad Retirement program, and payments for vocational rehabilitation services for disabled beneficiaries.

            

To make an estimate - high, intermediate or low - the trustees make numerous actuarial assumptions. Those include, assumptions about levels of fertility, changes in mortality, legal and other immigration levels, changes in the Consumer Price Index, changes in average real wages, unemployment rates, trust fund real yield rates, and disability incidence and recovery rates. 

 

Bluntly, estimating income that will come into the Social Security System 5, 10 and 15 years down the road is at best an “educated guess.” The same can be said of estimating costs, including the benefit payments, that the system will incur down the road. 

 

But one thing is very clear: when the economy is in recession and people don’t have jobs, payroll tax collections will also be down, which means lower income for the System. A longer than anticipated recession means Social Security assets are depleted sooner. 

 

Private businesses generally estimate revenues (or income) conservatively, while 

they generally tend to overestimate costs (or expenses). If the history of our Federal 

and State governments tends to show anything, it’s that the government does things 

backwards. Government tends to overestimate revenues, and underestimate costs. 

 

Look what the Congressional Budget Office is now telling us about Obamacare.  For 

that reason, the trustees’ High Cost Estimate may not be high enough. 

 

By the way, this report was not prepared by Republicans hacks.  The Social Security Act established a Board of six Trustees.  At least three are Democrats: Timothy F. Geithner, Secretary of the Treasury, Kathleen Sebelius, Secretary of Health and Human Services, and Hilda L. Solis, Secretary of Labor.

 

It must be noted that the fact that the fund’s assets will be exhausted either in 2027 or 2033 doesn’t mean Social Security will quit paying altogether. But if costs exceed total income by, say, 25%, then benefits will have to be reduced by 25% — unless total income is somehow increased, or the the eligibility age is raised. 

 

Procrastination will not make the fix any easier

 

 

 

First Published in the Moline Dispatch, June 13, 2012.

Copyright 2008, John Donald O'Shea

Posted Online:  June 19, 2012, 2:31 p.m - Quad-Cities Online

by John Donald O'Shea
Copyright 2012, John Donald O'Shea 

Be Careful Whose 'Corporate' Constitutional Rights You Abolish!

Congressman James McGovern, D-Mass, recently introduced a proposed 28th Amendment to the U. S. Constitution -- "The People Rights Amendment. "

This amendment (or as I see it, this piece of abject stupidity) according to Rep. McGovern, "marks a major breakthrough in the growing movement across the country to end corporate personhood and restore democracy to the people."

He argues, "Corporations are not people ... they are artificial entities." His amendment would strip corporations of all Constitutional rights and protections.

McGovern was joined in introducing the amendment by House Minority Leader Nancy Pelosi, D-Calif., 26 other Democrats and one Republican. For Rep. Pelosi, this appears to be one more case of "we have to pass the .... bill so that you can find out what's in it."

Rep. McGovern (born 1959) represents Massachusetts' 3rd Congressional District. He has served since 1997. He is a member of the Democratic Party. He is a member of the Congressional Progressive Caucus and has been ranked as one of the most liberal members of Congress. His proposed Amendment shows why.

Fortunately, unlike the health care bill, this abomination is only a half page long. Here it is:

"Section 1. We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons.

"Section 2. The words people, person, or citizen as used in this Constitution do not include corporations, limited liability companies or other corporate entities established by the laws of any State, the United States, or any foreign state, and such corporate entities are subject to such regulation as the people, through their elected State and Federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution.

"Section 3. Nothing contained herein shall be construed to limit the people's rights of freedom of speech, freedom of the press, free exercise of religion, freedom of association and all such other rights of the people, which rights are inalienable.''

McGovern's stated purpose in proposing his amendment is to reverse the Supreme Court ruling in the Citizen's United case, which held that corporations (and labor union) -- like individuals -- have a First Amendment right to free speech.

Since 1791, the First Amendment says, "Congress shall make no law ... abridging freedom of speech or the press."

In the Citizen United case the Supreme Court read "no law" to mean "no law." Note that the First Amendment doesn't read, "Except in the case of corporations, Congress shall make no law ... abridging freedom of speech or the press." But McGovern's Amendment goes beyond that "minor" alteration.

Upon passage of the amendment, "the rights protected by this Constitution (will only) be the rights of natural persons." That would "not include corporations."

So, what corporations would be stripped of the Constitutions Rights?

All of them! General Motors, Deere & Co., Bank of American, Blackhawk Bank and Trust, CNN, Fox News, WHBF-TV, KWQC-TV, WQAD-TV, The Dispatch/Argus, Project Now, Planned Parenthood, the NRA, The ARC of Rock Island County, Bethany Home, the Catholic Church, any other incorporated church, the cities of Rock Island and Moline, Rock Island County, Key Auto Mall, Courtesy Ford, the Quad City Music Guild, Playcrafters Barn Theatre, the Col. Davenport Historical Foundation, The Republican Party, the Democratic Party, Moline High School, etc., etc., etc.

Every corporation -- large or small -- throughout the U.S.!

And if you read carefully, you will quickly see that it would not just abolish a corporation's right of free speech. This amendment would rob every corporation in the land of all their constitutional rights!

It would strip corporations of the right to be free from unreasonable searches and seizures, the right to due process and fair, speedy and public trial, the rights to be able to know the charge, to confront accusers, and to cross examine accusers, as well as the 14th Amendment rights to due process and equal protection.

Indeed, Corporations would have no right to just compensation if their property were to be taken for public use. Corporations would no longer be protected from ex post facto laws. Additionally if you are a corporate news organization, you would no longer have freedom of the press. If you are a church corporation, you would no longer have freedom of religion.

And note, the proposed Amendment makes no distinction between business corporation, advocacy corporations, ecclesiastical corporations, or newspaper corporations.

Under this Amendment, the government could shut down any corporate speech or press it did not like. This would include speech by NBC,CNN, Fox News Mediacom or any corporate internet provider. Nor would they, or this newspaper any longer enjoy freedom of the press!

Posted Online:  Posted Online: June 04, 2012, 3:07 pm - Quad-Cities Online

by John Donald O'Shea
Copyright 2012, John Donald O'Shea 

Department of Labor Morphs into Ministry of Propaganda

In the movie, Truman, President Truman utters the line, "I'm just the man holding this office. If I dirty it, the dirt doesn't leave with me when I go, it stays here to rub off on whoever comes after me from now on."

The line may be pure "Holywood,"but that doesn't make it any less true.

If you have listened when the "mainstream media has given you the Department of Labor ("DOL") "initial unemployment claim" numbers, you are undoubtedly convinced that the economy is recovering and new unemployment claims are steadily declining. So, is our government (i. e., the DOL) telling us the truth or lying to us?

The numbers actually show that President Obama's DOL consistently lowballs each week's "initial unemployment claim" numbers to give the appearance that the economy is improving, and then revises them upwards a week later, when no one is looking.

This has gone on week after week. Because a friendly media focuses only on the initial report, and ignores the revised numbers, you are led to believe President Obama's polices are working; that the employment situation is steadily improving. But look at the numbers for the past 12 weeks.

The figures below come from the DOL's website. Every week, you will see a lead paragraph that looks like this, even though the numbers change:

"In the week ending April 28, the advance figure for seasonally adjusted initial claims was 365,000, a decrease of 27,000 from the previous week's revised figure of 392,000."

Here are the numbers for the seasonally adjusted initial claims (as initially reported) over a 12 week period.

-- Feb. 25, 351,000

-- March 3, 362,000

-- March 10, 351,000

-- March 17, 348,000

-- March 24, 359,000

-- March 31, 357,000

-- April 7, 380,000

-- April 14, 386,000

-- April 21, 388,000

-- April 28, 365,000

-- May 5, 367,000

-- May 12, 370,000

Here are the'revised initial claims numbers — after being "revised" (generally upwards) just one week later.

-- Feb. 18, 353,000

-- Feb. 25, 354,000 (up from 351,000)

-- March 3, 365,000 (up from 362,000)

-- March 10, 353,000 (up from 351,000)

-- March 17, 364,000 (up from 348,000)

-- March 24, 363,000 (up from 359,000)

-- March 31, 367,000 (up from 357,000)

-- April 7, 388,000 (up from 380,000)

-- April 14, 389,000 (up from 386,000)

-- April 21, 392,000 (up from 388,000)

-- April 28, 368,000 (up from 365,000)

u-- May 5, 370,000 (up from 367,000)

These figures clearly show that the DOL has been engaged in a shell game! If you go back to Feb. 25, it is obvious that the "seasonally adjusted initial claims" are not decreasing! Nor are the "revised" figures. Using the revised numbers, over this 12-week period, there have to be 4,426,000 new unemployment claims!

So what is going on? It's simple. The DOL has morphed into the Ministry of Propaganda.

It's an election year, so the DOL consistently understates the "seasonally adjusted initial claims" (to get them below the prior week's "revised" number); then one week later it "revises" them upwards.

Don't believe me; look at the DOL's own numbers. Here are three examples of how the DOL "statisticians" play the game:

On April 21, DOL said that there were only 388,000 initial unemployment claims; a week later they revise that number up to 392,000.

On April 14, it said there were only 386,000 initial unemployment claims; a week later it revises that number up to 389,000.

On April 7, issaid there were only 380,000 initial unemployment claims; a week later you revise that number up to 388,000.

The bottom lines is this: Ignore the lowballed "seasonally adjusted initial claims" number. To get a more accurate number, just look at the "revised" number, after it was been revised one week later.

So, since Feb. 25, are "initial claims" rising or falling? Has the number ever dropped below 353,000? Is the DOL innocently mistaken? (How many weeks in a row can you be "innocently mistaken?") Or telling little white lies to the American public to aid the president's reelection? What other explanation is there for revision after revision?

Why not just wait one week, and publish only the "revised" numbers?

If DOL is telling little white lies to help the president get reelected, why is that important? Why was Watergate important? Why did we impeach President Nixon?

Watergate was important because a burglary was used in an attempt to get the President Nixon reelected. We impeached President Nixon because he lied to cover up the what had been done.

Here's the bottom line -- something President Truman actually did say:

"The fundamental basis of this nation's laws was given to Moses on the Mount. ... If we don't have a proper fundamental moral background, we will finally end up with a totalitarian government which does not believe in rights for anybody except the State."

It is one thing for the government to mislead our enemies. It is another thing for the government to mislead the American people.

Posted Online: May 29, 2012, 2:35 pm - Quad-Cities Online

by John Donald O'Shea
Copyright 2012, John Donald O'Shea 

Should Polygamy Be a Constitutional Right?

President Obama now says that it is important for him to affirm that same-sex couples should be able to get married. As such, for him, "marriage" is now nothing more than a union between any two consenting adults.

So, then, what is the President's position on polygamy? Is it "evolving," as well? If so, why is the number, "two" sacred?

If "consent" between "adults" is the key, what's wrong with consentual polygamy?

I have recently opined, indicating that "marriage" is a "fundamental right" of the American people and, that while not specifically enumerated in the Bill of Rights, that it is protected by the Ninth Amendment. In my earlier discussion, I defined marriage as a consentual union between one man and one woman. I used that definition because that is what people who came to live in the United States prior to the enactment of our Constitution in 1788 understood marriage to be. I now suggest, for reasons explained below, the right to marry -- between a man and a woman -- is also protected by the First Amendment which guarantees the "free exercise" of religion.

But what about people who have religious beliefs that polygamous unions are mandated by their religion? Do they have a right to practice polygamy in the United States, given the First Amendment which provides that "Congress shall make no law ... prohibiting the free exercise" of religion?"

There was a time in the late 19th century when the Mormons believed that polygamy was mandated by their religion. They argued that the First Amendment which provides that "Congress shall make no law ... prohibiting the free exercise" of religion" guaranteed that right.

That was the question answered by the U. S. Supreme Court decision in Reynolds v. U. S. (1878). In that case, George Reynolds, a Mormon, was found guilty under a federal statute which prohibited bigamy in the Utah Territory. On appeal to the Supreme Court, he raised the question: "Should the accused have been acquitted if he married the second time, because he believed it to be his religious duty?

As you read the excerpts from the Supreme Court's opinion below, notice the importance that the court attaches -- for First Amendment purposes -- to the fact while monogamous marriages were recognized throughout the European countries from which the colonists came, and that polygamy was not. The Reynolds court, therefore, concluded that polygamy was not part of the religious freedom that the First Amendment protected.

"The word 'religion' is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted.

The precise point of the inquiry is, 'what is the religious freedom which has been guaranteed?'

"Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void ... and from the earliest history of England, polygamy has been treated as an offence against society. After the establishment of the ecclesiastical ... courts, and until the time of James I, it was punished through the instrumentality of those tribunals, not merely because ecclesiastical rights had been violated, but because upon the separation of the ecclesiastical courts from the civil, the ecclesiastical were supposed to be the most appropriate for the trial of matrimonial causes and offences against the rights of marriage ...."

The Reynolds court, not withstanding that polygamy was a consentual relationship between adults, denied polygamy 1st Amendment protection. So not withstanding the President's "affirmation," where does that leave "same-sex" marriage constitutionally? I raise that question because at the time our Bill of Rights was adopted, as in the case of polygamy, nobody in America seriously claimed that same-sex couples had a right to "marry."


Posted Online: May 17, 2012, 3:00 pm - Quad-Cities Online
by John Donald O'Shea 
Copyright 2012, John Donald O'Shea

Kumbaya or Confrontation? The 1st Amendment Question!

If Jefferson Davis II were running for president on a platform of reimposing slavery, would a black minister have a right to tell his congregation to vote against Jeff Davis II?

If Adolf Hitler Jr. were running for president, promising to exterminate all Jews, could a Rabbi lawfully urge his congregation to vote against Hitler Jr.?

On April 14, Bishop Daniel Jenky of Peoria, delivered an unusually forceful "anti-abortion" homily entitled, "A Call to Catholic Men of Faith."

Bishop Jenky accused the Obama administration of serious violations of religious liberty. Those who disagree with what he said have demanded his resignation from the University of Notre Dame Board of Fellows. Others have asked the IRS to revoke the dioceses' tax exemption.

Here are excerpts from that homily:

"For 2,000 years the enemies of Christ have certainly tried their best. But ... the Church survived...

"The Church will survive the entrenched corruption and sheer incompetence of our Illinois state government, and even the calculated disdain of the President of the United States, his appointed bureaucrats in HHS, and of the current majority of the federal Senate.

"We can no longer be Catholics by accident, but instead be Catholics by conviction.

"In the late 19th century, Bismarck waged his 'Kulturkampf,' ... against the Roman Catholic Church, closing down every Catholic school and hospital, convent and monastery in Imperial Germany.

"Hitler and Stalin, at their better moments, would just barely tolerate some churches remaining open, but would not tolerate any competition with the state in education, social services, and health care.

"In clear violation of our First Amendment rights, Barack Obama -- with his radical, pro abortion and extreme secularist agenda, now seems intent on following a similar path.

"[T]his is not a war where any believing Catholic may remain neutral.

"This fall, every practicing Catholic must vote, and must vote their Catholic consciences, or by the following fall our Catholic schools, our Catholic hospitals, our Catholic Newman Centers, all our public ministries -- only excepting our church buildings -- could easily be shut down.

Because no Catholic institution, under any circumstance, can ever cooperate with the intrinsic evil of killing innocent human life in the womb."

Whether you think Bishop Jenky right or wrong on abortion, there can be no argument that killing a human fetus raises a moral and religious issue. For 3,000 years Jews and Christians accepted "Thou shall not kill" as God's Commandment. There is no question but that applies to all humans from the minute of their birth. The only issue is whether it also applies to the unborn.

It is historically and religiously the function of a bishop to teach and preach. Christ told his disciples, "to make disciples of all nations ... teaching them "

Teaching has been the bishops' distinctive function for 2,000 years. It was the bishops' office when the Constitution was adopted, and the Bill of Rights approved. Our Founding Father recognized that.

When a bishop sees what he perceives to be a serious violation of God's law, he has a First Amendment right to believe that what he perceives is an "enormous evil." As a teacher, he has a second First Amendment religious right to engage in the free exercise of his religion, plus a third First Amendment right (free speech) to speak to convince others to oppose the "wrong" and/or wrongdoer.

The fact that a man is a bishop doesn't deprive him of First Amendment rights of freedom of belief, or free exercise of his religion. Nor does it mean that he surrenders his right of free speech. Whether he speaks in church, on a street corner, in a Catholic newspaper or on television, he still has the same First Amendment rights. (He is not advocating a breech of the peace.)

The First Amendment exists to give Americans -- including bishops -- the right to convince fellow Americans that any politician is evil, unworthy to be elected, re-elected, etc.

IRS regulations that abridge Bishop Jenky's rights to freedom of religion and speech are unconstitutional.

The reason churches are tax exempt is because the "power to tax is the power to destroy" -- or control.

If churches can be prevented from speaking out on moral issues, or against politicians they perceive to have taken immoral positions on issues, such as extermination of Jews, killing the unborn, or "putting down" the retarded or the elderly, you have destroyed freedom of religion, as well as freedom of speech. Removal of a tax exemption is in essence a tax.

If Planned Parenthood has a right to speak for abortion, a church has a right to speak against it. If "pro-choice" individuals and corporations have a right to support the election of "pro-choice" politicians, Bishop Jenky and religious corporations have a right to oppose "pro-choice" politicians, and to call for the election of "pro-life" politicians.

That is what the Citizen's United case is all about, and why it was correctly decided. Without this right, you get the sort of church leaders who temporized as million Jews were murdered.

So, where do you stand? For Kumbaya or confrontation? What exactly does "Freedom of Religion" mean?

Is a priest to be limited to saying Mass inside his church? A minister, limited to reading scriptures from his pulpit? Kumbaya or confrontation? The 1st Amendment question!

Posted Online: May 01, 2012, 3:24 pm - Quad-Cities Online

by John Donald O'Shea
Copyright 2012, John Donald O'Shea