How Town Meeting Prayers, and Marriage Are Related

On June 22, I concluded my summary of the U.S. Supreme Court's holding in Town of Greece v. Galloway by saying, "I think the reasoning in this case could be of great importance in other areas of constitutional law. My thoughts on the importance of the case will follow."

So, here they are.

The right of a man to marry a woman, and vice versa, nowhere appears in the U.S. Constitution. Nevertheless, it has been an undoubted right of all adult men and women living in America -- both before and since the adoption of the U. S. Constitution.

And it wasn't a right of just one group of colonists. All male and female colonists, whether English, French, Spanish, Dutch, Swedish, etc., enjoyed the right whether they resided in English, French or Spanish colonies. Indeed, even the native peoples, Iroquois, Huron, Sioux, etc., enjoyed the right. For that reason, the right to marry seems to be one of those rights retained by the people and reserved to the people or states by the Ninth and 10th amendments.

-- "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." -- Amendment IX

-- "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" -- Amendment X

And while the right to marry is nowhere mentioned in the U.S. Constitution, neither does the Constitution give Congress or the federal government any power to regulate marriage. In the powers of Congress enumerated in Article I, Section 8, there is nothing whatsoever about "marriage."

Historically, marriage in America has been between one man and one woman. The U. S. Supreme court holding Reynolds v. U. S. (1878) makes that patently clear:

"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. ...

" ... 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 ...

"By the statute of 1 James I. (c. 11), the offence, if committed in England or Wales, was made punishable in the civil courts, and the penalty was death. As this statute was limited in its operation to England and Wales, it was at a very early period re-enacted, generally with some modifications, in all the colonies.

"In connection with the case we are now considering, it is a significant fact that on the 8th of December, 1788, after the passage of the "act establishing religious freedom," and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that 'all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience,' the legislature of that State substantially enacted the statute of James I., death penalty included."

The argument can be made that a 14th Amendment (1868) "equal protection" argument was not advanced in Reynolds v. U.S. But it can also be argued that it wasn't made because nobody seriously believed that the 14th Amendment was enacted to guarantee polygamous marriages equal rights with marriages between one man and one woman.

Town of Greece v. Galloway (2014) was not a case about marriage. Rather, it concerned the constitutionality of opening a town meeting with a prayer. But look at what the court said:

"The First Congress made it an early item of business to appoint and pay official chaplains, and both the House and Senate have maintained the office virtually uninterrupted since that time. ...

"When Marsh was decided, in 1983, legislative prayer had persisted in the Nebraska Legislature for more than a century, and the majority of the other States also had the same, consistent practice. ...

"In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with a prayer has become part of the fabric of our society."

Now, change a few words and you can see what the court could easily say if it opts to hold that non-traditional marriages do not get the same constitutional protection as traditional marriages:

"In light of the unambiguous and unbroken American history of more than 500 years, there can be no doubt that marriage is between one man and one woman, and that that practice has become part of the fabric of our society."

The point is simply this: For 500 years, nobody who came to America believed as a matter of law that marriage was anything other than a union between one man and one woman, except perhaps the Mormons.

But if marriage is reserved to the people and the states, then the decision to expand or not to expand the meaning of marriage resides with states and not with the federal government.

And that leads me to consider another new U.S. Supreme Court holding, Schuette v. BAMN, which may also have significant bearing on the non-traditional marriage question. So get ready for one more op-ed.

Posted Online:  June 30, 2014 at 2:20 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

Congress Heard Prayer before Backing "Establishment Clause"

On May 5, the U. S. Supreme Court decided Town of Greece v. Galloway.
In the case, Galloway sued Greece, claiming that the town, by opening its monthly meeting with a prayer, created an unconstitutional "establishment of religion."

The town did not prescribe or approve the prayers to be said. A town employee simply called ministers listed in a directory, until one volunteered (without pay) to say the opening prayer.

Justice Anthony Kennedy, writing for the majority, held that the town's practice was permissible and did not constitute an unconstitutional First Amendment violation. The court relied on its 1983 precedent in Marsh v. Chambers.

"In Marsh ... the Court found no First Amendment violation in the Nebraska Legislature's practice of opening its sessions with a prayer delivered by a chaplain paid from state funds."
The court then explained its holding in Marsh.

"Marsh is sometimes described as 'carving out an exception' to the Court's Establishment Clause jurisprudence, because it sustained legislative prayer without subjecting the practice to any of the formal 'tests' that have traditionally structured' this inquiry. ... The Court in Marsh found those tests unnecessary because history supported the conclusion that legislative invocations are compatible with the Establishment Clause. The First Congress made it an early item of business to appoint and pay official chaplains, and both the House and Senate have maintained the office virtually uninterrupted since that time. ...

"When Marsh was decided, in 1983, legislative prayer had persisted in the Nebraska Legislature for more than a century, and the majority of the other States also had the same, consistent practice. ... Although no information has been cited by the parties to indicate how many local legislative bodies open their meetings with prayer, this practice too has historical precedent ... 'In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with a prayer has become part of the fabric of our society.'"

In short, the legislative opening prayer was sustained because the very Congress that had just passed the First Amendment during that same session began the practice of opening its sessions with an opening prayer said by a paid chaplain.

Obviously, if they felt that the practice amounted to an improper "establishment of religion," they wouldn't have done it.

"That the First Congress provided for the appointment of chaplains only days after approving language for the First Amendment demonstrates that the Framers considered legislative prayer a benign acknowledgment of religion's role in society."

But while the Greece court sustained the legislative prayer practice, it did add a caveat:

"Yet Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation. The case teaches instead that the Establishment Clause must be interpreted "by reference to historical practices and understandings."

On the other hand, the court instructed that the "content of the prayer (opening legislative sessions) is not of concern to judges," provided "there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief."

The court further explained, and rejected the plaintiff's argument that public prayers must be "non-sectarian."

"Our Government is prohibited from prescribing prayers to be recited in our public institutions in order to promote a preferred system of belief or code of moral behavior (Engel v. Vitale). It would be but a few steps removed from that prohibition for legislatures to require chaplain to redact the religious content from their message in order to make it acceptable for the public sphere. Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy.... 'The suggestion that government may establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds strikes us as a contradiction that cannot be accepted.'

"The government may not seek to define permissible categories of religious speech. Once it invites prayer into the public sphere, government must permit a prayer-giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian."

The court then gave guidance as to what has been historically typical legislative prayer.

"It is thus possible to discern in the prayers offered to Congress a commonality of theme and tone. While these prayers vary in their degree of religiosity, they often seek peace for the Nation, wisdom for its lawmakers, and justice for its people, values that count as universal and that are embodied not only in religious traditions, but in our founding documents and laws."

Rejecting the notion that some citizens might find such prayer offensive, or compulsive, the court said, "Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith."

Finally, the court indicated it would look to see that the entire body of the prayers offered -- rather than a single prayer -- was consistent with how legislative prayers have been done traditionally.

"Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation. Marsh, indeed, requires an inquiry into the prayer opportunity as a whole, rather than into the contents of a single prayer."

Space limitations prevent me from doing more than summarizing the opinion. But I think the reasoning in this case could be of great importance in other areas of constitutional law.My thoughts on the importance of the case will follow.

Posted Online:  June 21, 2014, 11:00 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

Illinois Democrats: "Raise Taxes or the Sky Will Fall"

My father had a rule born of the Great Depression: "Pay cash; don't buy on time; and don't pay interest."

Dad didn't buy "things" (our home excepted) unless he had cash to pay for them.

Illinois' Democrat politicians have a "better idea". They buy whatever strikes their passing fancy, even though the state is flat broke. Then to pay, they raise taxes, or borrow and pay interest.

They, for example, want to build President Obama's library. Presidential libraries are ordinarily built with private funds. But their "better idea" is to pay for it with taxpayer dollars they don't have.

This "better idea," like other "better ideas," comes along at a time when Illinois can't pay its bills on time and has a multi-billion dollar pension problem.

Illinois ended 2013 with $7.6 billion in unpaid bills. (Not withstanding the fact that in January 2011 Democrats -- without the support of a single Republican lawmaker -- raised the state income tax on individuals from 3 percent to 5 percent, and the corporate income taxes from 7.3 percent to 9.5 percent.)

Couple that with the fact that "the state's four main state pension funds have an unfunded liability of roughly $100 billion.

Here's a sample of Democrat logic. U.S. Sen. Dick Durbin, D-Ill., describes taxpayer dollars he wants spent on the Obama presidential library as "seed money."

"It's going to have a long-term positive economic impact. ... This library will pay back in terms of visitors to our state, more business, more jobs and people paying taxes. ... Whether $100 million is the right dollar amount, I don't know ...."

And he's not alone. Illinois House Speaker Mike Madigan, D-Chicago, and Chicago Democrat Mayor Rahm Emanuel have been leading the charge to spend taxpayer dollars for the library. Indeed, an Illinois House Committee led by Democrats wanted to appropriate $100 millions for it.

There is of course one flaw in the argument: once built, presidential libraries generally lose money. Therefore, once built, they are normally sloughed off to the U. S. National Archives -- which continues to operate them at a loss.

By comparison, "friends" of presidents Bush and Clinton raised over $200 million in private dollars to fund their libraries. George Washington's library at Mount Vernon operates on private donations.

In addition to this "better idea," Democrats have some others. Spend $520,0000 to fly 91 prairie chickens into Illinois at a cost of $1,166 per prairie chicken, and spend billions for "high speed rail" (e.g., buy 35 locomotives at $5 million)!

On May 31, Illinois Senate Democrats approved a $35.7 billion budget, in which expenses exceed revenues by $4.4 billion or 12.3 percent. To make it balance, Democrats want to extend the 5 percent Illinois personal income tax, and the 9.5 percent corporate income taxes -- not withstanding their promises that the tax increases would be "temporary." The alternative would be -- horror of horrors! -- to actually cut spending by $4.4 billion or by 12.3 percent.

So you can bet that in the lame-duck session -- right after the 2014 General Election -- Democrats will welsh on their 2011 promise to let the personal income tax revert from 5 percent to 3.75 percent, and the corporate income tax revert from 9.5 percent to 7.75 percent in 2015. Recall, that it was in the 2011 lame-duck session that the Democrats raised the income taxes to their present levels. (Why during the lame-duck session? Because that's when "retiring" politicians can pass anything, fully knowing they will not have to answer for their votes while they are collecting their pensions.)

We are already -- predictably -- being told that a $4.4 billion or 12.3 percent spending cut will be catastrophic! Programs will be devastated. Historic sites will be closed. State agencies will be left in limbo.

The sky will fall!

There are two methods of budgeting. Governments generally use baseline budgeting, or a variation thereof. Real people -- like you and I -- use zero based budgeting.

Baseline budgeting uses current spending levels as the baseline for establishing future funding requirements and assumes future budgets will equal the current budget plus upward adjustments for inflation and population growth.

Zero based budgeting requires that all spending must be rejustified each year or it will be eliminated from the budget -- regardless of previous spending levels!

Illinois families don't have the option of using baseline budgeting to run their homes. They can't spend 12.3 percent more then they have. If they expect a 2015 income of $31,300 per year, spending $35,700 is a recipe for bankruptcy -- unless they have savings they can dip into.

Illinois has reached the point were it can't be Santa Claus to everybody. The only rational approach is for the state to thoroughly analyze every one of its programs.Then, set aside the necessary money for the most important program. Next, do the same for the second. Then, do the same for the third, and so on.

When the $31.3 billion runs out, quit spending. No sane man believes that there isn't 12.3 percent waste, duplication and/or cronyism in Illinois' $35.7 billion budget.


Posted Online:  June 12, 2014, 11:00 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

Don't Trust Humans to Redistrict Illinois

               "Gerrymander, Joy of Joys, Safe house seats for all our boys!
                        "Gerrymander, we're awfully fond of you, voo, voo, de, doh!"
                                  - To tune of "Rubber Duckie," 
                                          Rock Island County ARC Gridiron Show (1991)

The present system of redistricting Illinois congressional districts and Illinois state legislative districts is cynical political humbug.

What passes for fair-minded redistricting in our state is a counterfeit, inconsistent with the 14th Amendment to the U.S. Constitution which provides "No State shall ... deny to any person within its jurisdiction the equal protection of the laws."

In 1964, the U. S. Supreme Court in Reynolds v. Sims, held that state legislative districts had to be roughly equal in population. The case rose when voters from Jefferson County, Ala., challenged the redistricting of their state legislature. At the time, Alabama state senators were elected from senatorial districts grossly unequal in population.

One district had 14 times the population of another!

Eight justices voted to strike down the Alabama senate district scheme. Chief Justice Earl Warren wrote that it violated the U. S. Constitutional requirement of "one person, one vote."

He further wrote, "Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests."

Reynolds v. Sims was not a gerrymandering case. It did not involve drawing congressional districts roughly equal in population but manipulating their boundaries so as to include or exclude Republicans or Democrats, in order to give one party an a electoral advantage.The most extreme example of that would be to create a meandering district that included only persons registered in the Democratic primary, and excluding all persons registered in the the Republican primary -- that is, a district with only Democrats.

The language in the Reynolds v. Sims majority opinion, however, clearly states that "gerrymandering" can be unconstitutional.

"The right to vote can neither be denied outright ... nor destroyed by alteration of ballots ... nor diluted by ballot box stuffing. Obviously included within the right to choose, secured by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted. ... Racially based gerrymandering, and the conducting of white primaries, both of which result in denying to some citizens their right to vote, have been held to be constitutionally impermissible. And history has seen a continuing expansion of the scope of the right of suffrage in this country. The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise."

When districts are intentionally gerrymandered to create districts in which Democrats or Republicans almost are guaranteed victory, the members of the other party have their votes debased. But although the problem may be obvious, the solution may not be.

In the early years when I was on the bench, once a year all Illinois judges were required to attend the Illinois Judicial Conference Educational Seminar. At a luncheon during one such session, the issue of appointing judges (rather than electing them) was discussed by the speaker, an Illinois Supreme Court justice.

The justice expressed skepticism with the argument that "allowing the governor to appoint judges would keep judicial appointments from being political." Instead, he suggested a better way: "Have the appointments made by the Illinois Supreme Court." When the laughter subsided, he finished his remarks, having persuaded nobody.

Recently, the Yes for Independent Maps Coalition has been working to collect about a half a million signatures to get a proposed constitutional amendment on the November ballot that would take redistricting of Illinois legislative districts (not Congressional districts) out of the hands of the legislature.

They correctly believe that Illinois history demonstrates that legislative redistricting equals gerrymandering.

As outlined by the coalition, if approved, any Illinois citizen could apply to join the legislative redistricting commission. A nonpartisan applicant review panel, appointed by the auditor general, would eliminate applicants with conflicts of interest, such as lobbyists or public officials. (Excluding anybody, of course, raises a new set of constitutional questions.)

A lottery then would be used to select commissioners to create a group of two Democrats, two Republicans and three unaffiliated with either party, all proportionally representing Illinois' five judicial districts. The four top legislative leaders in Illinois would each appoint one commissioner from the remaining pool. Commission meetings and records would be open to the public.

The problem I have with this solution to fix Illinois legislative redistricting is that to the extent that there is a human element involved, a remedy is hardly guaranteed. People in politics maneuver, and even finagle to gain partisan advantage.

I would opt for the simplest of all solutions. Create districts as nearly rectangular as possible (taking account of the fact Illinois is not square, but rather is bounded by wandering rivers, etc.) Require these districts be as equal in population as possible. Take account of no other factors. Leave race, creed, color, ethnicity, municipal subdivision boundaries, etc. out of the determination.

Have the district lines drawn by computers, with no directions in the program other than

1. Make them as rectangular as possible, and

2. As nearly equal in population as possible.

If a district is drawn to favor whites, it disfavors everybody else. If it is drawn to favor Latinos, it disfavors Irish guys.

At a minimum, my plan would certainly bar any congressional or legislative district that look like our present 17th Congressional District -- the epitome of a Gerrymander, or perhaps a crocodile, with its mouth open, perched on its keister!

Posted Online:  June 5, 2014, 11:00 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

Has Putin Borrowed Hitler's Playbook?

"The condition of the Sudeten Germans is indescribable. It is sought to annihilate them. As human beings they are oppressed and scandalously treated in an intolerable fashion ... The depriving of these people of their rights must come to an end. ... I have stated that the 'Reich' would not tolerate any further oppression of these three and a half million Germans, and I would ask the statesmen of foreign countries to be convinced that this is no mere form of words." -- Adolf Hitler, Nuremberg Speech, Sept. 12, 1938

Substitute "ethnic Russians in the Ukraine" for "Sudeten-Germans," "Russia" for "the Reich" and "Putin" for "Hitler," and you will find history repeating itself with Vladimir Putin starring in the role of Adolf Hitler.

On March 12, 1938, Hitler invaded Austria and declared unification of Austria with Nazi Germany in violation of the Treaty of Versailles, which prohibited Austrian/German unification! Neither France nor Britain lifted a finger.

Plans for liquidation of Czechoslovakia had been drawn even before that. In June 1937, at Hitler's instructions, "the German General Staff undertook to draft plans for the dismemberment of the Czechoslovak state."

One draft stated, "The aim and object of this surprise attack by the German armed forces should be to eliminate from the very beginning and for the duration of the war the threat from Czechoslovakia to the rear of operations in the west, and to take from the Russian air force the most substantial portion of its operational bases in Czechoslovakia."

Concurrently, before his invasion of Austria, to gull the gullible, Hitler opened his public case against Czechoslovakia in a February 20, 1938 speech to the Reichstag.

"Over ten million Germans live in the two states (Austria and Czechoslovakia) adjoining our frontier." Hitler claimed it was Germany's duty to protect and to secure to them "general freedom, personal, political and ideological."

Konrad Heinlien, the Nazi Party leader in the Sudetenland, did all he could to foment unrest and afford Hitler a pretext to invade.

This, coupled with reliable rumors of German troop movements toward the Czech border, forced Czechoslovakia to declare a partial mobilization on May 20, 1938. To Hitler's perverted mind, the Czech response to menacing German troop movements was "an intolerable provocation."

Hitler's Jan. 30, 1939 post-invasion speech makes this unmistakably clear.
"In view of this intolerable provocation ... I resolved to settle once and for all, and this time radically, the Suedeten-German question. On May 28, I ordered preparation should be made for military action ... "

But Hitler's generals were nervous. They could not believe France would not honor its solemn treaty obligations to it faithful ally, Czechoslovakia, and that Britain would not honor its treaty obligations to France.

Accordingly, on June 18, Hitler wrote to  reassure his nervous general staff, "I will decide to take action against Czechoslovakia only if I am finally convinced, as in the case of the demilitarized zone and Austria, that France will not march, and that therefore England will not intervene."

In the months that followed, tensions rose. When the Czechs agreed to one German demand, the Germans would make further demands. What began as demands for more local autonomy within provinces of Czechoslovakia where the Germans constituted a majority, were ratcheted up to require the Czechs to evacuate the Sudetenland within five days. In an attempt to defuse the situation, British Prime Minster Neville Chamberlain flew to Germany three times. After Chamberlain's first face-to-face meeting with Hitler, Chamberlain returned to Britain and met with his cabinet. He told the cabinet that "Hitler was in a fighting mood," "that the French had no fight in them," and that "there could be no question of resisting Hitler's demands upon Czechoslovakia."

In The Gathering Storm, Winston Churchill writes that many of Chamberlain's ministers "found consolation in the notion that Hitler was merely seeming to vindicate on behalf of the Sudeten Germans 'the right of self-determination,'
and the 'claims of the minority to just treatment.' Indeed, some even inexplicably felt that 'Hitler was merely championing the small man against the Czech bully."

On Sept. 27, 1938, with the support of his ministers, Mr. Chamberlain told the British people "How horrible ... it is that we should be digging trenches
and trying on gas-masks here because of a quarrel in a far away country between people of whom we know nothing. It seems still more impossible that a quarrel which has already been settled in principle should be the subject of war. However much we may sympathize with a small nation confronted by a big and powerful neighbor, we cannot in all circumstances undertake to involve the whole British Empire in war. ... If we have to fight, it must be on larger issues than that."

On Sept. 29, Hitler, Chamberlain, Edouard Daladier of France, and Mussolini attended a one-day conference that led to the Munich Agreement, which handed over the Sudetenland to Germany. On returning home, on Sept. 30, Mr. Chamberlain told the British people.

"This morning I had another talk with the German Chancellor, Herr Hitler, and here is the paper which bears his name upon it as well as mine. ... We regard the agreement signed last night ... as symbolic of the desire of our two peoples never to go to war with one another again."

The crowd cheered.

Later in the day, Mr. Chamberlain told the cheering crowds, "A British Prime Minister has returned from Germany bringing peace with honour. I believe it is peace for our time."

To his chagrin, Chamberlain learned that Hitler had no more regard for the Munich Agreement than he had for the Versailles Treaty.

First Georgia. Now the Ukraine. Putin is operating from the Hitler playbook, while President Obama is operating from Mr. Chamberlain's.

Soft words and appeasement didn't deter Hitler; nor will they deter Putin. It is time for all Americans to read Winston Churchill's The Gathering Storm. An administration resolved to be irresolute is no match for a determined dictator.


Posted Online:  May 24, 2014, 11:00 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

If We Punish People for their Beliefs, Freedom Is Dead

At common law, all crimes consisted of two elements: an "intent" element and an "act" elements.

It was not a criminal conspiracy for two men to plan to rob a bank. The plan to rob the bank became a crime only when one or both did an act to further that intent, such as buying a hand gun to be used in the robbery.

Similarly, words alone do not constitute murder. If a man writes in his diary "I'm going to kill my neighbor," it is not murder, absent an act that effects the killing and a homicide.

The same principle is found in the First Amendment to our U. S. Constitution: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech."

In the words of our Supreme Court, "the Amendment (as it pertains to religion) embraces two concepts, freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be" (Abington v. Schempp, 1963).

The First Amendment absolutely guarantees one's right to believe that God wants all men to be cannibals. It does not, however, guarantee one's right to act on that belief. While you have an absolute right to believe that its okay to eat your neighbor, if you act upon that belief, you will face murder charges.

The amendment also guarantees free speech. And if Americans -- except within narrow exceptions -- have a right to voice their opinions publicly, they certainly have a right to have private conversations.

A man can express his bigotry in a private conversation in his home or with his wife without fear of prosecution. (I am talking here of private conversations expressing opinions. I am not talking about words used to discriminate or bully, or the yelling of "fire" in a crowded theater. Words that are used to work discrimination, or to bully or to libel move beyond the realm of opinion or belief, and become "verbal acts.")

Our first Amendment was a reaction to the intolerance of medieval prosecutions of opinions and beliefs deemed "heretical." It was also fashioned as a check on the religious intolerance of colonial America, as evidenced in The Colony Laws of the Massachusetts Bay Colony, Chapter 39.

It guarantees Americans both the right to speak as well as the right not to speak.

No man, for example, can be prosecuted for refusing to take an oath that he is not a member of the Communist party or Nazi party.

Jefferson and Madison saw the danger of trying to control people's beliefs. That's why Madison wrote the First Amendment which Jefferson explicated in his 1802 letter to the Dansbury Baptist Association:

"Believing with you that religion is a matter which lies solely between man & his god, -- that he owes account to none other for his faith or his worship, -- that the legitimate powers of government reach actions only, and not opinions, -- I contemplate with sovereign reverence that act of the whole American people (the 1st Amendment) which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state."

America came to this position knowing that no man was safe if he could be prosecuted for his thoughts -- his beliefs. Twenty-first century America seems to be rejecting that Jefferson/Madisonian notion.

To me, it is one thing to be a bigot. If you hate blacks or whites or Asians, or atheists or Catholics or Protestants or Jews or Muslims, etc., that may be wrong, evil, immoral or even reprehensible. But I fear punishing bigots solely on account of their beliefs. If people can be jailed, or be made to surrender their property, or be ostracized or deprived of their free speech rights for holding a belief deemed "politically incorrect" today, then they can just as well be deemed "bigoted" for holding the diametrically opposed "bigoted" belief tomorrow.

If today a man can be destroyed for holding traditional Catholic beliefs on marriage and homosexuality, recall that only a few hundred years ago that he would have been hauled before the Inquisition for not holding those same beliefs.

On the other hand, when a person acts upon his beliefs and wrongfully discriminates against and harms his neighbor, at that point rights must be balanced, wrongful discrimination punished and appropriate remedies fashioned.

But if people are going to be punished solely for their personal beliefs -- without acts in furtherance of those beliefs --— we are back to the days of the Inquisition -- an institution equally well-suited for enforcing the "orthodox beliefs" of whoever controls the government.

And if it is a crime to believe, others can be compelled to testify to prosecute that crime. In Nazi Germany, children were encouraged to report anything their parents said critical of the Nazi government. Parents went to concentration camps for their beliefs and political opinions.

The "establishment of religion" clause of the First Amendment is premised on the notion that as long as a man does not act to hurt his neighbor and only believes, that he should be left alone. Supreme Court Justice William O. Douglas said, "The right to be let alone is indeed the beginning of all freedom."

If America reaches the point where a man can be punished for his thoughts, his beliefs and his private conversations -- with no discriminatory act in furtherance thereof -- we will live in a police state, and suffer a reign of terror.

When men are punished for their beliefs, albeit repugnant beliefs, freedom is dead.

The First Amendment which protects both freedom of religion and speech, protects both favored and disfavored beliefs and speech. It also protects truthful as well as untruthful beliefs and speech. The alternative, requires thought-police," and a police state.

The proportional and appropriate remedy for bigoted beliefs or speech is counter-speech: Speech that informs, enlightens and holds the bigot's beliefs up to scrutiny - Speech that educates in the marketplace of ideas.

Posted Online:  May 17, 2014, 11:00 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

In Defense of Corporations; They Revolutionized the World

During the years President Obama has been in office, corporations have been vilified.

It goes without say that corporations, like individuals, can behave badly and even criminally. But without corporations, there would be no modern America as we know it. It is not an overstatement to say that the "corporate form" allowed American business to produce the greatest economy that the world has ever known.

The corporation is not a modern invention. It was recognized in Roman Law in the Code of Justinian (reigned 527-565). The Dutch chartered the Dutch East India Co.; Charles II, the Hudson Bay Co. But such corporations were created by Royal or parliamentary grants.

In 1844, William Gladstone (England) and his Parliamentary Committee on Joint Stock Companies produced the Joint Stock Companies Act of 1844. It allowed establishing of a company as a separate legal person. The advantages largely were administrative; the act allowed creation of a unified entity to handle the affairs of the investors. It could sue and be sued just like a natural person. No longer did all the shareholders have to be named as plaintiffs, and no longer did all have to be individually named and served with process to be made defendants. The corporation also could buy, sell own and mortgage property.

It was not until 1855, however, that the English Parliament passed the Limited Liability Act that allowed investors to limit their liability in the event of business failure to the amount they had invested in the company, Shareholders now were liable directly to creditors only to the the extent that they had not paid for their shares in full. New York had passed a limited liability act for shareholders in 1811, but only to shareholders in "manufacturing" corporations.

These laws taken together allowed the financing of the Industrial Revolution. No longer did investors have to wheedle a royal or parliamentary grant. For the first time in history, it was possible for ordinary people to create a "corporation" through a simple registration procedure. Corporations now could have a perpetual existence. The business no longer had to "wind up," as in the case of the death of a member of a partnership. The business could sue and be sued. It could buy, sell, own and mortgage property as if it were an individual. Finally, English investors could pool funds to raise the giant pools of money needed to create railroads, steamship lines and great manufacturing concerns.

Limited liability meant that an investor could choose to risk a portion of his net wealth, without fear that if the venture went bankrupt the rest of his fortune would be seized to pay the debts of the venture. This was also fair to the creditors of the corporation because they knew up front the "authorized capital" of the business -- the total pool of money put at risk by the stockholders.

While there were earlier corporation acts in America, the Delaware General Corporations Act of 1899 has been the model for other such acts in the county.

It allowed any three or more persons to establish a corporation for the transaction of any legal business.

The Delaware Act of 1899 gave corporations the following powers:

1. To have a perpetual existence;

2. To sue and be sued;

3. To hold, purchase, mortgage and convey real and personal property for its corporate purposes;

4. To appoint officers and agents as required for its business purposes, and to suitably to compensate them;

5. To make bylaws fixing the number of directors to manage the affairs of the corporation.

The Certificate of Incorporation was required to (a) state the name of the corporation, (b) its principal place of business, (c) the nature of the business to be transacted, (d) the total authorized capital stock of the corporation (not less than $2000), (e) when the corporation was to commence operations, (f) whether its existence was limited or perpetual, and (g) whether the private property of stockholders shall be subject to the payment of corporate debts, and if so to what extent.

In a further effort to protect creditors, the corporation was barred from paying stockholders a dividend except out of surplus or net profits, and required to make accurate financial reports.

The advantages of the corporate form are obvious. When an individual dies, his business ends. When a partner dies, the partnership is dissolved, and a new partnership has to be set up, if the business is to continue. When a shareholder or a director of the corporation dies, the business goes on.

When an individual opts to go into business as an individual, he not only exposes his investment to creditors, he also exposes his entire wealth to their claims. The same is true of a traditional partnership or tradition joint venture. (Yes, there can be limited liability partnerships).

Limited liability allows the corporation to go to hundreds, thousands or even ten thousands of investors to raise the enormous sums necessary to finance an airline, a canal or even a company to put privately-owned satellites in orbit.

A corporation can abuse the powers granted to it. But so can a person, a partnership, an association or a government. Corporations aren't perfect because they are run by people. But at their worst, they have never been as bad a governments (e.g., Hitler's Germany and Stalin's Russia).

Without them, America would not have great railroads, airlines, auto companies, computer companies and charitable foundations. And we might well have lost World War II.

Today it is fashionable to be against allowing corporation to make political donations and expenditures. But corporations are people: managers, employees, and stockholders.

When individuals, associations, unions, PACs and the government speak against corporations and demand laws that control how corporations do business, basic fairness requires that corporations have the right, on behalf of themselves and their directors, stockholders, employees and customers, to make corporate expenditures and support politicians who are sympathetic to the their interests and those of their stockholders, customers and employees. Just because a person is employed by a corporation, he doesn't surrender his right of free speech if he happens to speak for a corporation.

If corporations speak falsely, the preferred 1st Amendment remedy is not to bar them from speaking; it's counter-speech to expose their falsehoods.

Posted Online:  May 06, 2014, 11:00 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea