Posts Tagged ‘U.S. Constitution’

The Jurisprudence of Lies

Thursday, March 8th, 2018

I have often written about how our nation is no longer truly governed by our elected representatives, but is instead dominated by unelected, unaccountable Black-Robed Platonic Guardian Rulers on the Courts. By that I primarily mean the body of men and women who have received life-time appointments to the federal courts, and who use their enormous power to invent new principles of law that have either been rejected by the democratic process or never contemplated by it.

This judicial oligarchy has a long history. The fundamentally false concoction of abortion law is the perfect example — a body of alleged jurisprudence that declares that unborn children have no rights that born people are bound to respect. We saw the rash of lawlessness surrounding the redefinition of marriage, resulting in the intellectually incoherent stew of the Obergefell and Windsor decisions.

We are now seeing it in the infiltration of sexual orientation and gender ideology into the judicial mindset, resulting in a growing jurisprudence of lies. In the last two weeks, we have seen ample evidence. Both cases involve judicial re-invention of the plain, clearly-understood meaning of a federal statute — Title VII of the 1964 Civil Rights Act, which in part prohibits discrimination on the basis of “sex”.

As one federal judge recently said, “In common, ordinary usage in 1964 — and now, for that matter — the word ‘sex’ means biologically male or female; it does not also refer to sexual orientation.” There really is no intellectually coherent way to understand Title VII as having anything to do with notions of “sexual orientation” or “gender identity”. In fact, every “LGBT” organization understood it that way, since they have spent, and continue to spend, a great deal of time, energy and money trying to amend the law to include “sexual orientation” and “gender identity”. But Congress has consistently rejected those amendments.

Now, in order to be valid and legitimate, any law has to have certain characteristics. St. Thomas Aquinas would define a law as “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” So a law has to make sense and be reasonable. It has to be enacted through the proper process — in the United States, that means passed by a legislature and signed by an executive. It must be clear so that ordinary people can understand it, and it cannot change constantly or be subject to shifting sands of interpretation — it has to be predictable so that people will know what is expected of them.  It has to be made public so that there are no secret meanings that people will be held accountable for. If an enactment does not have these characteristics, it is arbitrary and subject to the abuse of power and the advancement of special interests rather than the common good. It is not law at all, but merely an imposition of power.

This is where our lawless oligarchic judiciary comes in. Last week, the 6th Circuit Court of Appeals, based in Ohio, ruled that Title VII isn’t just limited to discrimination on the basis of “sex”, it also bans discrimination based on “transgender and transitioning status”. Perhaps that was in the statute all along, but in invisible ink? The alleged basis for this decision was a prior Supreme Court ruling that a woman could not be penalized because she did not conform to some stereotypes of how a woman should dress and act. It’s important to note that the court was completely unimpressed by what the term “sex” was understood by everyone to mean when the law was enacted. They just blew right past that and re-defined the word to fit their own ideological agenda, turning the law into a lie.

By doing so, the court fell right into the utter incoherence of gender ideology. That bizarre body of thought rejects the male/female sexual binary, denies that biological sex has any significance to a person’s self-defined identity, holds that “gender” is an invented social construct designed to oppress sexual minorities, and maintains that a person can change their “gender identity” into anything they want. If that’s the case, then “transgender and transitioning status” clearly has nothing to do with “sex”, because it entirely rejects the normative relevance and value of sex. But by trying to shoehorn “transgender and transitioning status” into the term “sex”, the advocates — and the court they bamboozled — are trying to have it both ways by saying that “sex” is both irrelevant and a decisive factor. They want to eliminate “sex” but still benefit from it when it suits them. Talk about stacking the deck in your favor.

The second example of judicial usurpation took place earlier this week. The 2nd Circuit Court of Appeals, based here in New York, overturned its precedents and held that Title VII’s term “sex” also includes “sexual orientation”. That’s quite an expansive word, isn’t it? Once again, the court just re-invented the word at the wave of a hand. As one of the dissenting judges said, “the majority misconceives the fundamental public meaning of the language of the Civil Rights Act… By prohibiting discrimination against people based on their sex, it did not, and does not, prohibit discrimination against people because of their sexual orientation.” To say that “sex” in Title VII means anything other than “male” or “female” is just a lie.

Our Church calls us to avoid any unjust discrimination against homosexual persons. But different treatment of homosexual persons is fundamentally not the same as discrimination on the basis of “sex” or even “sexual stereotypes”. Sex discrimination involves negative treatment against a person because of who they are — male or female — or whether they meet certain notions of how a man or woman should behave. Differential treatment of homosexual persons is not like that at all — it is based on disapproval of anyone, male or female, who has sexual attractions or engages in sexual behavior that is considered immoral or otherwise unacceptable. That may indeed be invidious discrimination in some cases, but it certainly is not what Congress meant, or what anyone understood, when Title VII was enacted. To treat such different legal concepts as if they were the same is just a lie.

In 1820, Thomas Jefferson wrote a letter in which he discussed his views about the proper role of the judiciary in the American constitutional system.  In his letter, Jefferson made a famous observation:

You seem … to consider the judges as the ultimate arbiters of all constitutional questions;  a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.

Jefferson was a prophet.

Gun, Violence, and the Gospel

Wednesday, November 15th, 2017

I am a responsible gun owner. I like shooting and I have hunted (unsuccessfully). I am interested in and know a lot about firearms. I have family and friends who are responsible gun owners and collectors. I respect the Second Amendment to the Constitution and the natural right of self-defense that it recognizes. I realize that the vast majority of gun owners are law-abiding and that many violent crimes are prevented by private gun ownership, including by licensed concealed carrying of a firearm.

But guns are too readily available in this country, and we’ve seen what happens when they can easily be obtained by people with mental health problems, ideological fixations, and a heart of darkness. About 15 million firearms are manufactured or imported into the United States every year. About 30% of adult Americans own at least one firearm and there are an estimated 300 million firearms in private ownership. In many states there are shockingly few limits on buying a gun. Just as an example, we go to West Virginia every summer to do vounteer work. Gun ownership is a serious part of the culture there. One day, about a week after the Pulse Nightclub shooting, we walked into a hardware store and there in the back was a rack full of rifles — including one identical in all respects to the one used in that massacre. I could have bought it and as much ammo as I wanted, simply by showing ID and doing an instant background check over the computer. No licensing or training requirements and no oversight by any government agency ever again.

And there are far too many deaths and injuries that result from gun ownership. According to the Centers for Disease Control, in 2014, 33,594 persons died from firearm injuries — and an astonishing 64% of those deaths were suicide. The most common victim is a white, middle-aged or older man who takes his own  life. The other most common victim is a young black male who is murdered. There clearly is a connection between ease of access to firearms and violence. The problem is in crafting public policies that will have an actual impact, rather than just “making a statement”.

Gun ownership in much of the country is regulated far less than many perfectly safe activities. For example, to become a licensed barber in New York, you have to complete a 500 hour training class that costs thousands of dollars. Nobody has ever died from a bad haircut. To own and drive a car, you need a license that requires training classes, an eye test, periodic renewal, passing a government-supervised examination in safe driving, plus a government-recognized title of ownership and proof that you have adequate insurance. Clearly there is a need for much tighter licensing requirements for firearm ownership.

The Bishops of the United States have long advocated for reasonable regulations of gun ownership. Their suggestions are not perfect, but they would be a good starting point:

  • Universal background checks for all gun purchases — the effectiveness of a background check is entirely dependent on the quality of the information that is gathered. If key information is not included in the database, then background checks are useless. But even the best background check has limited usefulness, because many violent offenders have no prior criminal records that would exclude them from lawful gun ownership.
  • Making gun trafficking a federal crime — There are already numerous federal and state laws that prohibit illegal gun transactions and possession, but they are limited in scope and enforced with few resources. The Bureau of Alcohol, Tobacco and Firearms has only 2,700 special agents and was only able to refer fewer than 9,000 criminal enforcement cases for prosecution in 2016. There clearly needs to be a greater commitment of resources to the enforcement of gun laws. Laws with wider scope are also necessary to cut down on practices like the use of “straw purchasers” as a subterfuge for criminals to buy multiple guns.
  • Limiting civilian access to high-capacity weapons and ammunition magazines — These bans are highly controversial and their feasibility and effectiveness are not clearly proven. However, the use of semi-automatic rifles in recent mass shootings has heightened public interest in cutting back on their availability. No law can perfectly accomplish its goal, but some kind of regulation of these weapons may be able to reduce risks of multiple-casualty incidents.
  • Improving access to mental health care for those who may be prone to violence — This is a major public health need, and it is not being adequately addressed at all levels of government. It is a particularly important response to the high number of gun suicides. Unfortunately, its effect on gun homicide is not easy to determine, since the great majority of people who use guns to kill others are not discernibly mentally ill.

In the end, the only real solution to gun violence is to address the pathologies of our culture. We live in what Pope Francis calls a “throwaway society” where all things, including human lives, appear to be disposable. We are also deeply in the clutches of what Pope St. John Paul called the “Culture of Death”, in which death and violence are almost reflexively seen as the solution to all kinds of problems. There is a sickness in the heart of our society, and that comes from a sickness in the hearts of too many of us — the loss of a sense of the innate dignity and sacredness of every human life, and of any hope or meaning in our lives.

The Gospel of Jesus Christ offers the ultimate and best answers to these sicknesses of heart and soul. But while we work for the evangelization of our culture and the conversion of hearts, we must work towards a consensus on reducing the availability of firearms, as an imperfect but incremental way of reducing the terrible violence we see in our nation.

The American Monarch Wages War

Saturday, April 8th, 2017

One of the most important stories in Anglo-American constitutional history has been the struggle over the extent of what is called the “royal prerogative”. That’s the term for the inherent power of the monarch in such areas as foreign affairs, warfare, law-making, etc.

The history of England is in many respects the history of the gradual restriction of the unlimited power of the king and the imposition of conditions and limitations that established a separation of powers between executive, legislative, and judicial branches of government. One of the central elements of the royal prerogative was the power to make war without the approval of Parliament. Even to this day, the monarch of Great Britain has the sole authority to declare war, without the consent of the legislature.

That history is essential to understanding the foundation of the United States. If you were to read the Declaration of Independence, and focus on the “long train of abuses” in that document, you’ll understand that the misuse of royal prerogative was at the heart of the grievances that led to the Revolution. One of the driving principles in the Declaration, and later in the Constitution, was the need to limit the royal prerogative and to limit the power of the executive with checks and balances.

Article One, Section Eight of the Constitution gives to Congress the sole authority to declare war, to raise armies and navies and to regulare them. Article Two, Section Two designates the President as the Commander in Cheif of the military, which ensured civilian control of the military, but did not give him unlimited power to make war or take other actions purely at his discretion. That principle has been upheld by the Supreme Court, for instance in the Youngstown Steel case, which overturned President Truman’s seizure of steel mills during the Korean War. It has always been understood, however, that in emergency situations, the President can act to defend America against attack, even without first getting Congressional approval. That same section has also been understood to give the President very broad powers to conduct the foreign policy of the United States, including making treaties.

Add to this is that the United States has signed onto the United Nations Charter, which is thus part of the “supreme law of the land”  according to Article Six of the Constitution. That Charter permits nations to act in self-defense against an armed attack (Article 51) but specifically forbids “the threat or use of force against the territorial integrity or political independence of any state” (Article 2). Under the Charter, and thus under American law, the authority to used armed forces against another state is reserved to the Security Council (Chapter VII).

Over the course of our history, presidents have greatly expanded their powers over war-making. Our nation has engaged in many conflicts on Presidential decision alone, without specific Congressional approval. From time to time, Congress has tried unsuccessfully to restrain that power. In recent years, Congress has completely abdicated its authority over declaring war. With a few exceptions (e.g., the Iraq War), the United States has consistently ignored the United Nations Charter when deciding to engage in armed conflicts.

Why does this matter to Catholics? It has always been an element of Catholic social teaching that nations may engage in warfare under very limited conditions. This has generally been known as the “just war” doctrine, and can be found in the Catechism of the Catholic Church, section 2309. An essential element of that doctrine is that the decision to engage in war must be made according to the laws of the nation and international law by the competent legal authorites.

Those requirements have been consistently flouted by our militarized government. We have now come to a place where the President has no accountability to anyone — not Congress, the Supreme Court, or the Constitution. And so we are engaged in on-going wars in Afghanistan, Iraq, Somalia, Yemen and now Syria, all of which are being waged without any regard to the Constitutional limits on presidential authority.

It is as if we never separated from Great Britain. In effect, we have a monarch with unlimited royal prerogative to wage wars on other nations. These decisions are too important to leave morality out of the calculus. As Catholics, we must bring moral principles into the debate.