SCOTUS cases re coronavirus / religious services

[NJlonghorn]

Since it is a pre-existing God-given Natural Right to worship God, no one has a right to tell you how to worship.

Does this apply equally to all religions? What about religions that support animal sacrifice because God told them to? Or religions that harass people at airports because God told them to?

I am absolute on the freedom of churches and businesses to navigate health issues on their own.

So if a church and its members want to do something, no matter how dangerous to themselves or others, the government has no right to intervene? Do you really mean that?

And the same for businesses? No limits at all?

I am absolute on people doing the same in public parks.

Can the government prohibit a bow-hunter from shooting squirrels in a public park? What if it's a shotgun? What about masturbating near the playground?

I know these are extreme examples, but I'm just testing whether you really mean you are an "absolutist" about these rights. If not, then the issue boils down to a question of where to draw the line -- an inherently subjective exercise.

Let's focus on letting Americans be freemen again and not serfs. Because that is what you are advocating. Treating healthy people as sick people. Treating people who want to go to work to provide for themselves as outlaws. Treating mothers in a park with their children as child abusers. Treating people standing 5 feet away instead of 6 feet away from people as aggressors. If that is reasonable to you...

I agree with you that some of the restrictions have gotten out of hand. The examples you give are good ones. But that is a far cry from saying that restrictions are never justified.

 

[Mr. Deez]

lol, I was about to say the same thing.

I'm a little disappointed with Monahorns on this one. Consistency is usually pretty important to him, but he kinda ditches that here. I'm sure he'll lump me into the God-haters, but I'm probably as devout as he is. I'm not one of these mainline Protestants or nominal Catholics. I'm a Bible-loving, snake-handling Evangelical. I'm a Shiite Christian.

 

[Sangre Naranjada]

I am absolute on the freedom of churches and businesses to navigate health issues on their own.

Jim Jones would probably agree with you here.

 

[Mr. Deez]

What about religions that support animal sacrifice because God told them to?

I know you didn't sign up to play "Ask a Jewish person," but you bring up something I've always wondered about. When and why did Jews stop sacrificing animals? It seems like such a ridiculous question that I've never felt comfortable asking anybody. However, I honestly don't know the rationale.

 

[NJlonghorn]

I know you didn't sign up to play "Ask a Jewish person," but you bring up something I've always wondered about. When and why did Jews stop sacrificing animals? It seems like such a ridiculous question that I've never felt comfortable asking anybody. However, I honestly don't know the rationale.

Interesting topic. I'm no expert, but I'll give you a bit of insight.

First, sacrifice only happened at the inner chamber (called the "Holy of Holies") of the Temple on Temple Mount (first and second incarnations) in Jerusalem, which hasn't existed in over 2000 years.

Since then, Jewish scholars have picked up on various language in the Old Testament saying that God always preferred "Tikkun Olam" (literally, "healing the world", but often loosely translated as charity or good deeds) as more important than animal sacrifice. So we are called upon to do even more good deeds than back in the day, to replace the sacrifices.

Finally, one of the ancient sages (I think it was Maimonades) taught that God never really desired sacrifices, but put that into the Torah as a concession to pagan practices that would be hard for the people of the time to abandon.

I am more into Judaism as a set of cultural traditions and ethical guidelines than a religious thing, so I'm willing to accept any of these answers. It is a more troubling issue, imho, for devout Jews.

 

[mchammer]

Interesting topic. I'm no expert, but I'll give you a bit of insight.

First, sacrifice only happened at the inner chamber (called the "Holy of Holies") of the Temple on Temple Mount (first and second incarnations) in Jerusalem, which hasn't existed in over 2000 years.

Since then, Jewish scholars have picked up on various language in the Old Testament saying that God always preferred "Tikkun Olam" (literally, "healing the world", but often loosely translated as charity or good deeds) as more important than animal sacrifice. So we are called upon to do even more good deeds than back in the day, to replace the sacrifices.

Finally, one of the ancient sages (I think it was Maimonades) taught that God never really desired sacrifices, but put that into the Torah as a concession to pagan practices that would be hard for the people of the time to abandon.

I am more into Judaism as a set of cultural traditions and ethical guidelines than a religious thing, so I'm willing to accept any of these answers. It is a more troubling issue, imho, for devout Jews.

Weren’t the burnt offerings (doves, lamb, calves, etc.) distributed to the poor for food?

 

[Monahorns]

Perhaps, but two problems. First, the Constitution is the legal document that gives the judiciary power to make a ruling. Subjective opinions about inherent rights do not.

Second, states have rights too, and without a specific limitation on their power, the federal courts lack the jurisdiction and therefore the legitimacy to strike down their actions.

It is not a subjective opinion to say that Natural Rights are not conferred by government they are merely acknowledged and that the 9th and 10th Amendments can be used to support that. It is the actual idea discussed in either the need for them or the lack of a need. That means even if it isn't spelled out citizens have those rights before any level of government. 10th Amendment says "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." I guess it doesn't mean this but I would hope the people have the power to decide if they would rather go to church or stay home to avoid a virus. If that seems an unreasonable right or power, I am at a loss. I would expect that from an atheist Progressive but not a Christian. I am not saying you have to agree with me on this. I am saying I am baffled a Christian doesn't thing it is reasonable to allow churches to worship when there is a viral outbreak or that the government essentially has carte blanche when there is one.

No, but nice diversion. I bright it up to illustrate the absurdity of your position.

Not sure why you are so blind to this. You just said my position is absurd, that I want churches to have the right to chose whether or not they will stay open during a health crisis. In order to prove your point you brought up something else you think is absurd, allowing the creation and distribution of child pornography. I agree that arguing about freedom in order to allow children to be abused like that would be absurd. But the only way you make that point is to draw comparisons between those 2 actions. Which you just did in the quote above.

I think the word, absolute, is what making this difficult. You think if people should have an absolute right in one area that justifies having an absolute right in another. But that is absurd itself. I also believe people should have the absolute right to eat what they want and listen to the music they like. I don't believe people have the absolute right to drive their car anywhere including into another person's living room.

You can make laws that raping children is illegal and filming and watching it are illegal because they are all incentives for more child rape.

What bad thing comes from giving churches absolute freedom to meet? Even during a health crisis what bad comes from letting them decide if they will stay open or not and what health guidelines they will use if they stay open? Yes, some people could get sick. But why is it unreasonable to allow Churches and Christians to meet in person if they want to? What is it so reasonable to take that decision out of their hands?

It sounds like the law you and the SCOTUS reference is that if all private organizations are given a restriction then churches don't have any recourse. But I don't agree that the government should be able to lockdown any private organization. So I don't see it as justification for churches. I see it as harmful for everyone. Giving severe restrictions to healthy and innocent people isn't reasonable. It is driven by paranoia and fear that if everyone else doesn't act like I want them to, then bad things are going to happen. It is a cover for tyranny.

So you're absolute when it's a right you like and in a scenario that benefits you.

If that is the conclusion you drew from the paragraph I wrote that you were responding to, then that is the worst case of reading comprehension from you that I have ever seen. I didn't talk necessarily about myself. And if you don't like freedom, people working, mothers playing in the park with their kids, and healthy people not treated with suspicion, then is on you. Yes, I like all those things because they are good things, in line with Natural Law and Natural Rights. Our laws should be in line with those things too. If not, we need to change it up.

 

[Monahorns]

Weren’t the burnt offerings (doves, lamb, calves, etc.) distributed to the poor for food?

I don't think so. Most of it was burned. What wasn't was eaten by the priests.

 

[Mr. Deez]

Interesting topic. I'm no expert, but I'll give you a bit of insight.

First, sacrifice only happened at the inner chamber (called the "Holy of Holies") of the Temple on Temple Mount (first and second incarnations) in Jerusalem, which hasn't existed in over 2000 years.

Since then, Jewish scholars have picked up on various language in the Old Testament saying that God always preferred "Tikkun Olam" (literally, "healing the world", but often loosely translated as charity or good deeds) as more important than animal sacrifice. So we are called upon to do even more good deeds than back in the day, to replace the sacrifices.

Finally, one of the ancient sages (I think it was Maimonades) taught that God never really desired sacrifices, but put that into the Torah as a concession to pagan practices that would be hard for the people of the time to abandon.

I am more into Judaism as a set of cultural traditions and ethical guidelines than a religious thing, so I'm willing to accept any of these answers. It is a more troubling issue, imho, for devout Jews.

That's a pretty good explanation for someone who's "no expert." Even if there's disagreement with scholars from devout Jews, the destruction of the Temple seems like a pretty solid reason that leaves little room for interpretation. It also likely resolves the issue for quite some time. Building a Third Temple on the Temple Mount would be controversial to say the least.

 

[Mr. Deez]

It is not a subjective opinion to say that Natural Rights are not conferred by government they are merely acknowledged and that the 9th and 10th Amendments can be used to support that.

What is and is not a natural right is a subjective opinion. What you're arguing for is the ability of federal courts to invalidate acts of state governments that violate rights that aren't codified anywhere but that the judges think are natural. That is the substantive due process doctrine. They use the term "fundamental" instead of "natural," but the result is the same - judges crushing the will of the people based on their policy preferences and untethered from objective, codified text. I fear the judicial tyranny from this far more than I fear an elected state official temporarily restricting how a church can conduct business once a century. I can vote out my state officials if I think they've done wrong. I can't do a damn thing to a federal judge.

The 9th and 10th Amendments are limitations on federal power. The Constitution restricts state power, but when it does, it does so expressly. See Art. I, Sec. 10 and subsequent amendments that specifically restrict state power.

That means even if it isn't spelled out citizens have those rights before any level of government. 10th Amendment says "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." I guess it doesn't mean this but I would hope the people have the power to decide if they would rather go to church or stay home to avoid a virus. If that seems an unreasonable right or power, I am at a loss. I would expect that from an atheist Progressive but not a Christian. I am not saying you have to agree with me on this. I am saying I am baffled a Christian doesn't thing it is reasonable to allow churches to worship when there is a viral outbreak or that the government essentially has carte blanche when there is one.

You can hope, and you might even have a case under state laws. However, a federal court has to have a legal basis to invoke its jurisdiction. Article III, Section 2 specifies how this is done. What you're trying to do doesn't fit.

How one applies the Constitution doesn't have anything to do with being a Christian or an atheist progressive. That's the problem with our jurisprudence. Too many people use their policy preferences, religious beliefs (or lack thereof), and "values" to drive their opinions on legal matters. They're doing it wrong.

I think the word, absolute, is what making this difficult. You think if people should have an absolute right in one area that justifies having an absolute right in another. But that is absurd itself. I also believe people should have the absolute right to eat what they want and listen to the music they like. I don't believe people have the absolute right to drive their car anywhere including into another person's living room.

If that's the case, then we can drop the child porn reference. I brought that up to show you how absurd taking an absolutist approach to rights can be. However, that presumes that we all care about consistency in how we apply laws. You're basically acknowledging that you don't, so it's not a relevant point anymore.

What bad thing comes from giving churches absolute freedom to meet? Even during a health crisis what bad comes from letting them decide if they will stay open or not and what health guidelines they will use if they stay open? Yes, some people could get sick. But why is it unreasonable to allow Churches and Christians to meet in person if they want to? What is it so reasonable to take that decision out of their hands?

The bad thing that happens is that churchgoers see other people. They go to church, spread the virus, and then go to work and other places and spread it beyond the church.

And that isn't the only bad that can come from your approach to giving a church an absolute right to meet. Suppose someone who goes to church does something terrible and gets thrown in the slammer. Do we have to let him out to go to church? If there is an absolute right of the church not only to meet but to meet in person, then he's got a pretty solid argument that he gets to leave the prison every Sunday to go to church.

It sounds like the law you and the SCOTUS reference is that if all private organizations are given a restriction then churches don't have any recourse. But I don't agree that the government should be able to lockdown any private organization. So I don't see it as justification for churches. I see it as harmful for everyone. Giving severe restrictions to healthy and innocent people isn't reasonable. It is driven by paranoia and fear that if everyone else doesn't act like I want them to, then bad things are going to happen. It is a cover for tyranny.

You're raising issues that go to the merits of the lockdowns. That is for elected officials to consider, not judges.

If that is the conclusion you drew from the paragraph I wrote that you were responding to, then that is the worst case of reading comprehension from you that I have ever seen. I didn't talk necessarily about myself.

Lol. Of course you didn't. Most people don't admit and celebrate their own hypocrisy. It's usually an obvious inference drawn by others.

And if you don't like freedom, people working, mothers playing in the park with their kids, and healthy people not treated with suspicion, then is on you. Yes, I like all those things because they are good things, in line with Natural Law and Natural Rights. Our laws should be in line with those things too. If not, we need to change it up.

I do like freedom. That's why I don't like federal judges acting outside their authority to reach their preferred outcome without any legal basis rather than letting elected representatives make these determinations.

 

[NJlonghorn]

What is and is not a natural right is a subjective opinion. What you're arguing for is the ability of federal courts to invalidate acts of state governments that violate rights that aren't codified anywhere but that the judges think are natural. That is the substantive due process doctrine. They use the term "fundamental" instead of "natural," but the result is the same - judges crushing the will of the people based on their policy preferences and untethered from objective, codified text. I fear the judicial tyranny from this far more than I fear an elected state official temporarily restricting how a church can conduct business once a century. I can vote out my state officials if I think they've done wrong. I can't do a damn thing to a federal judge.

The 9th and 10th Amendments are limitations on federal power. The Constitution restricts state power, but when it does, it does so expressly. See Art. I, Sec. 10 and subsequent amendments that specifically restrict state power.



You can hope, and you might even have a case under state laws. However, a federal court has to have a legal basis to invoke its jurisdiction. Article III, Section 2 specifies how this is done. What you're trying to do doesn't fit.

How one applies the Constitution doesn't have anything to do with being a Christian or an atheist progressive. That's the problem with our jurisprudence. Too many people use their policy preferences, religious beliefs (or lack thereof), and "values" to drive their opinions on legal matters. They're doing it wrong.



If that's the case, then we can drop the child porn reference. I brought that up to show you how absurd taking an absolutist approach to rights can be. However, that presumes that we all care about consistency in how we apply laws. You're basically acknowledging that you don't, so it's not a relevant point anymore.



The bad thing that happens is that churchgoers see other people. They go to church, spread the virus, and then go to work and other places and spread it beyond the church.

And that isn't the only bad that can come from your approach to giving a church an absolute right to meet. Suppose someone who goes to church does something terrible and gets thrown in the slammer. Do we have to let him out to go to church? If there is an absolute right of the church not only to meet but to meet in person, then he's got a pretty solid argument that he gets to leave the prison every Sunday to go to church.



You're raising issues that go to the merits of the lockdowns. That is for elected officials to consider, not judges.



Lol. Of course you didn't. Most people don't admit and celebrate their own hypocrisy. It's usually an obvious inference drawn by others.



I do like freedom. That's why I don't like federal judges acting outside their authority to reach their preferred outcome without any legal basis rather than letting elected representatives make these determinations.

@Mr. Deez -- you clearly have a bead on this one, so I thought I'd channel the devil's advocate himself, Justice Douglas, in aid of @Monahorns.

It is true that the Constitution does not explicitly recognize all natural rights. However, "the specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." 381 U.S. at 484. The absolute right to attend church services is implicitly found within the penumbra of the First Amendment.

Your turn....

 

[Monahorns]

Does this apply equally to all religions? What about religions that support animal sacrifice because God told them to? Or religions that harass people at airports because God told them to?

All religions have a right to worship. Why would I care if a religion sacrifices an animal? How is this hard to understand?

So if a church and its members want to do something, no matter how dangerous to themselves or others, the government has no right to intervene? Do you really mean that?

And the same for businesses? No limits at all?

Give me a specific case and we can talk. I think churches and businesses should be able to choose for themselves how they run their organization. Why do you assume the government knows better, has better motives, or can more properly assess risk for people than themselves. Sounds like serfdom to me.

Can the government prohibit a bow-hunter from shooting squirrels in a public park? What if it's a shotgun? What about masturbating near the playground?


I know these are extreme examples, but I'm just testing whether you really mean you are an "absolutist" about these rights. If not, then the issue boils down to a question of where to draw the line -- an inherently subjective exercise.

Good questions. I hadn't thought about that I admit. I agree those types of limitations sound reasonable. I would add thought that we don't have to be totally subjective. What we can do is assign authority. So in the case of a public park the city government can set the rules as a type of owner. However, I would prefer some kind of citizen, no governmental organization to set the rules and hear petitions since we all pay for those spaces. Then you could set a 6 foot social distancing I guess, but it doesn't change the fact that you would be criminalizing standing and still giving police the right to enforce this against mothers with their kids. Also, if you did that I would want a policeman to make a measurement before they said anything.

I agree with you that some of the restrictions have gotten out of hand. The examples you give are good ones. But that is a far cry from saying that restrictions are never justified.

I agree with you in principle on both statements. Where I differ is that I want to grant private property owner much wider authority. For instance, I don't think the government has the authority to shut down private organizations. Maybe there are some very extreme cases where I would be okay with it. But very, very extreme to the point where COVID-19 doesn't come close.

 

[Monahorns]

@Mr. Deez -- you clearly have a bead on this one, so I thought I'd channel the devil's advocate himself, Justice Douglas, in aid of @Monahorns.

It is true that the Constitution does not explicitly recognize all natural rights. However, "the specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." 381 U.S. at 484. The absolute right to attend church services is implicitly found within the penumbra of the First Amendment.

Your turn....

I know you are doing this simply as an exercise and it doesn't mean you agree. But I am very appreciative of your willingness to do it.

 

[Monahorns]

What is and is not a natural right is a subjective opinion. What you're arguing for is the ability of federal courts to invalidate acts of state governments that violate rights that aren't codified anywhere but that the judges think are natural. That is the substantive due process doctrine. They use the term "fundamental" instead of "natural," but the result is the same - judges crushing the will of the people based on their policy preferences and untethered from objective, codified text. I fear the judicial tyranny from this far more than I fear an elected state official temporarily restricting how a church can conduct business once a century. I can vote out my state officials if I think they've done wrong. I can't do a damn thing to a federal judge.

The 9th and 10th Amendments are limitations on federal power. The Constitution restricts state power, but when it does, it does so expressly. See Art. I, Sec. 10 and subsequent amendments that specifically restrict state power.

I understand there is difference of opinion on Natural Rights. But the US Federal government and the State governments were all built with them in mind. At the time of the founding, they agreed that Natural Rights didn't need to be codified. They just exist for us to observe and enforce.

I don't understand what you mean by "judges crushing the will of the people". They crushed the will of the churches to follow their own consciences before God. The thing you want to prevent, you are actually defending. I get your point about rule of law. That is what makes this a gray situation. But I also agree with law nullification which I know you don't for the same rule of law reason.

The judges could have applied the 9th and 10th Amendments to the people themselves meaning the churches, establishing that they have some level of authority themselves. Both amendments refer to rights and powers of the people. That's you and me.

If that's the case, then we can drop the child porn reference. I brought that up to show you how absurd taking an absolutist approach to rights can be. However, that presumes that we all care about consistency in how we apply laws. You're basically acknowledging that you don't, so it's not a relevant point anymore.

I do care about consistency though. You can grant authority and wide berth in behavior to private organizations that are otherwise law abiding. A health crisis is a serious issue but it doesn't usurp the protections we have against government encroachment. I can call for churches to decide for themselves if they meet or not during a health crisis and call for the illegality of child rape and be consistent. The complicating factor has been the fact that porn has been categoized as speech, which it is. But the underlying factor allowing porn in general is that it is made by adults who willfully decide to do it. It is immoral but it is not punished because we haven't made immorality illegal. Child rape is illegal. And as reasonable people we can delineate between a video of child rape being a crime or not. The act is always illegal. The recording and viewing can also be illegal or legal based on the situation. If the video was made because others have an appetite to watch it and will pay for them. That creates a situation where child rape is incentivized. We have to keep that from happening. If the video was made to catch a child predator and viewed in order to bring the rapist to justice then it isn't illegal because the purpose was to end child rape.

The bad thing that happens is that churchgoers see other people. They go to church, spread the virus, and then go to work and other places and spread it beyond the church.

And that isn't the only bad that can come from your approach to giving a church an absolute right to meet. Suppose someone who goes to church does something terrible and gets thrown in the slammer. Do we have to let him out to go to church? If there is an absolute right of the church not only to meet but to meet in person, then he's got a pretty solid argument that he gets to leave the prison every Sunday to go to church.

What you describe is possible. But all I am arguing for is the right to meet, not whether they ought to or ought to without precautions. I just want people to be able to make their own decisions, because otherwise the government continues to ratchet up the scope of their power over us. It's all for our good, I know. But I don't believe that is the purpose of government. They are here to enforce our freedoms or rights.

It treats people like livestock and it treats them with the presumption of guilt, in this case the guilt of being infected. I prefer to treat each person and their organizations as active moral agents who can choose how much risk to expose themselves to. Once you start giving government the right to lockdown people for being a potential threat to others you have just accepted the logic for the government to control our movement, beliefs, diet, etc. in order to protect us. There are still many other causes of death that kill more people than COVID-19. One of those is car accidents. Should the government have the right to determine when and where and how much distance we get to drive in a car? We already have speed limits, so I get we don't have absolute right. There is that restriction for safety, but I am uncomfortable with increasing the number of things the government gets to specify about our lives. I hope you are too.

You're raising issues that go to the merits of the lockdowns. That is for elected officials to consider, not judges.

Are you saying citizens have no way to redress laws they believe are unjust in the moment? We have to wait for an election in 2 to 4 years? If you are minority that means you never get a chance to undo unjust law because you will just be out voted each time.

I do like freedom. That's why I don't like federal judges acting outside their authority to reach their preferred outcome without any legal basis rather than letting elected representatives make these determinations.

I share much of your view point. I agree with your statement as a principle too. I think if there was a way for citizens to address specific laws in some other way I wouldn't care so much. But in the short term all we have are courts. If government power wasn't so big today I also wouldn't care so much about this specific case. But it wasn't we probably wouldn't have this problem to begin with.

 

[Mr. Deez]

I understand there is difference of opinion on Natural Rights.

You gloss over that. It's a big deal when we're talking about applying laws to people in court. It's the difference between a rule of written law and arbitrary rule by men.

But the US Federal government and the State governments were all built with them in mind. At the time of the founding, they agreed that Natural Rights didn't need to be codified. They just exist for us to observe and enforce.

They had natural rights in mind, but that doesn't mean they intended federal courts to be a general enforcer of them as opposed to enforcers of written laws. How do I know this? Because they specifically outlined when the federal court has authority to intervene. If you take a look at Art 3, sec 2, you'll see what I mean.

I don't understand what you mean by "judges crushing the will of the people". They crushed the will of the churches to follow their own consciences before God. The thing you want to prevent, you are actually defending.

Not at all. You dismiss the rights of states and the people they represent to act in a public health crisis and ask for unaccountable courts to stomp on them and without any written legal basis. Usually conservatives don't like that.

I get your point about rule of law. That is what makes this a gray situation.

If we're following the law to the letter, it's not a gray area. It only becomes one when we're trying to force a preferred outcome.

But I also agree with law nullification which I know you don't for the same rule of law reason.

It depends on the specifics. If they're nullifying an unconstitutional law, I don't have a problem with it, because that's actually following the law.

The judges could have applied the 9th and 10th Amendments to the people themselves meaning the churches, establishing that they have some level of authority themselves. Both amendments refer to rights and

Again, those are limitations on federal power.

A health crisis is a serious issue but it doesn't usurp the protections we have against government encroachment.

it depends on what the law says.

I can call for churches to decide for themselves if they meet or not during a health crisis and call for the illegality of child rape and be consistent.

You're missing the point. The inconsistency is in being absolutist about the free exercise clause of the First Amendment but refusing to do the same with free speech.

What you describe is possible. But all I am arguing for is the right to meet, not whether they ought to or ought to without precautions. I just want people to be able to make their own decisions, because otherwise the government continues to ratchet up the scope of their power over us. It's all for our good, I know. But I don't believe that is the purpose of government. They are here to enforce our freedoms or rights.

I don't disagree on the merits. That's an entirely separate issue from what authority states have under the Constitution.

Are you saying citizens have no way to redress laws they believe are unjust in the moment? We have to wait for an election in 2 to 4 years? If you are minority that means you never get a chance to undo unjust law because you will just be out voted each time.

They can go to court if they have a legal basis to do so. They can't go to court for no reason other than being unhappy with the acts of the people they elect.

I share much of your view point. I agree with your statement as a principle too.

If that's the case, then you have to follow it even when it doesn't reach your preferred outcome. Otherwise, it's no longer a principle but a weapon of tyranny.

 

[Mr. Deez]

@Mr. Deez -- you clearly have a bead on this one, so I thought I'd channel the devil's advocate himself, Justice Douglas, in aid of @Monahorns.

It is true that the Constitution does not explicitly recognize all natural rights. However, "the specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." 381 U.S. at 484. The absolute right to attend church services is implicitly found within the penumbra of the First Amendment.

Your turn....

Penumbras lead to the decimation of the rule of law.

"And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean." Justice Benjamin Curtis dissenting in Dred Scott v. Sandford.

 

[Monahorns]

You gloss over that. It's a big deal when we're talking about applying laws to people in court. It's the difference between a rule of written law and arbitrary rule by men.

Our countries laws are supposed to align with Natural Rights. If they don't there has to be some way to check that. Recognizing Natural Rights and protecting them is not arbitrary. It is the type of thinking our country was founded upon. Many of the founding generation thought it was needless to write down Natural Rights. They believed, and they were right, that if you write down some then people later will believe the only rights are the ones written. It is just the problem we are in now, because no one recognizes God given and created rights that pre-exist government and exist whether written down or not.

They had natural rights in mind, but that doesn't mean they intended federal courts to be a general enforcer of them as opposed to enforcers of written laws. How do I know this? Because they specifically outlined when the federal court has authority to intervene. If you take a look at Art 3, sec 2, you'll see what I mean.

Maybe the Courts aren't the correct way to protect Natural Rights. But if not then there is no real way to fight a law that violates Natural Rights which is a weakness of the Constitution. But the Bill of Rights does give us a good summary on which the Court can make judgments.

Not at all. You dismiss the rights of states and the people they represent to act in a public health crisis and ask for unaccountable courts to stomp on them and without any written legal basis. Usually conservatives don't like that.

They don't have a right to make laws that violate the Bill of Rights and Natural Law. But in your statement only the state and its representatives have any rights. The churches in the case are "the people", whose will is being crushed. Is there a clause in the Constitution about actions in a health crisis?

It depends on the specifics. If they're nullifying an unconstitutional law, I don't have a problem with it, because that's actually following the law.

Well, I think it was unconstitutional. That is my point.

Again, those are limitations on federal power.

Yes, limitations on them and granting of power to states and the people. I am talking about the power of the people in the Amendments.

it depends on what the law says.

Well, yes, if it violates people's God given and Constitutional rights, then the law should be struck down. That is what we are talking about.

You're missing the point. The inconsistency is in being absolutist about the free exercise clause of the First Amendment but refusing to do the same with free speech.

I thought I demonstrated a way to remain consistent while still having the ability to protect people from evil acts by treating one case as a protection of child against rape not speech. Maybe there are better ways to do that. Obviously adding an Amendment to specify things further would solve it. Also, I think you could probably come up with a specific situation where I could support the government closing church worship for a time. I don't know what that would be, but it wouldn't surprise me. It would be a very extreme situation and the duration would be specified strictly and consultation of churches would happen.

 

[Monahorns]

Oh and let me add. The CA state government is being super arbitrary. And many others. Christians are ordered to not worship God in public places. In other places they can but the amount of people is limited and social distancing still enforced.
However, political protests are allowed, without any debate. Both of those actions are protected under the 1st Amendment. How about this, if political protests are allowed then worshiping Jesus is allowed? They invalidated their own claim to a reasonable argument and the court decision.
Beyond that the police are allowing violence, murder, mayhem, angry Leftists screaming in peoples' faces. If you can't see that Christians are being discriminated against in favor of Leftist radicals, then I don't know what else I can say.
I also recognize that this isn't the Courts issue. But it shows the injustice in the state governments. Maybe the Court could offer a new verdict based on new evidence? Maybe an appeal will be made?

 

[Mr. Deez]

Our countries laws are supposed to align with Natural Rights.

Yes, but there are balancing interests. The founders recognized rights of individuals, but they also recognized the rights of people to form state governments that might view those rights differently from people in other states. Accordingly, they put major limitations on federal power and trusted the states to enforce natural rights through their own court systems.

It is the type of thinking our country was founded upon. Many of the founding generation thought it was needless to write down Natural Rights. They believed, and they were right, that if you write down some then people later will believe the only rights are the ones written.

But they did write down when federal courts are supposed to intervene. They didn't create a "natural rights jurisdiction." That is something judicial tyrants (from the Right in earlier days and mostly from the Left today) have tried to force through the 14th Amendment without any language supporting their agenda.

Maybe the Courts aren't the correct way to protect Natural Rights. But if not then there is no real way to fight a law that violates Natural Rights which is a weakness of the Constitution. But the Bill of Rights does give us a good summary on which the Court can make judgments.

It's not a weakness. It's a strength. State governments and sovereignty are good things. If we're actually following the Constitution, I don't need to be concerned with what idiots in California are doing and vice versa.

They don't have a right to make laws that violate the Bill of Rights and Natural Law. But in your statement only the state and its representatives have any rights. The churches in the case are "the people", whose will is being crushed. Is there a clause in the Constitution about actions in a health crisis?

I think in your mind I'm advocating for some new system that breaks with the founders. The opposite is true. The Bill of Rights applied only to the federal government. States were treated as sovereign entities empowered to enforce their own constitutions. The Supreme Court officially recognized that in 1833, but it was recognizing a practice that had been in place since the beginning. (For example, the First Amendment has always prohibited having official religions or established churches, but many states early on had established churches. And there was no controversy about their power to do that.)

Yes, limitations on them and granting of power to states and the people. I am talking about the power of the people in the Amendments.

The problem is that the Amendments only give people rights against the federal government. The application of some of the Bill of Rights and other "fundamental rights" to the states and enforced by federal courts has come through the due process clause of the 14th Amendment through language that actually does the opposite of what the language says. The term "substantive due process" is an oxymoron. It makes as much sense as "fresh from the can."

Oh and let me add. The CA state government is being super arbitrary. And many others. Christians are ordered to not worship God in public places. In other places they can but the amount of people is limited and social distancing still enforced.
However, political protests are allowed, without any debate. Both of those actions are protected under the 1st Amendment. How about this, if political protests are allowed then worshiping Jesus is allowed? They invalidated their own claim to a reasonable argument and the court decision.

Read the First Amendment. "Congress shall make no law . . ." California is doing this. Not Congress.

Beyond that the police are allowing violence, murder, mayhem, angry Leftists screaming in peoples' faces. If you can't see that Christians are being discriminated against in favor of Leftist radicals, then I don't know what else I can say.

Of course there's certainly an inconsistency at this point. The so-called pandemic experts who are ok with protests but not with church or business have basically ruined their credibility, which was already questionable. Might they go to court again? They might. I would rule against them, because I reject the application of the 1st Amendment to the states. However, Roberts could flip on this angle. Not every judge knows how to read.

 

[NJlonghorn]

Penumbras lead to the decimation of the rule of law.

"And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean." Justice Benjamin Curtis dissenting in Dred Scott v. Sandford.

@Mr. Deez Perhaps I should've made my point less obliquely.

I don't think @Monahorns realizes that he is making the same argument that is used to justify a constitutional right to abortion. My quote above was from Justice Douglas's opinion in Griswold v. Connecticut, which Justice Blackmun applied in Roe v. Wade.

@Monahorns wants Federal judges to have power to decide what is a natural right, and what is not. That position is fraught with peril.

 

[Mr. Deez]

@Mr. Deez Perhaps I should've made my point less obliquely.

I don't think @Monahorns realizes that he is making the same argument that is used to justify a constitutional right to abortion. My quote above was from Justice Douglas's opinion in Griswold v. Connecticut, which Justice Blackmun applied in Roe v. Wade.

@Monahorns wants Federal judges to have power to decide what is a natural right, and what is not. That position is fraught with peril.

I certainly got your point. I know the quote and the case very well. Furthermore, Douglas is about the last guy a conservative would want to emulate. He is to conservative legal thought what Karl Marx is to conservative economic thought.

Having said that, I'm also fully aware that I'm an outlier in totally rejecting substantive due process. Plenty on the Right are critical of it in specific cases like Roe or Griswold, but they are OK with it in other cases like McDonald v. City of Chicago. Some like Fifth Circuit Judge (and rumored US Supreme Court candidate for Trump) have commented favorably on reviving the Lochner Doctrine. To me, that is horrifying.

 

[Monahorns]

@Monahorns wants Federal judges to have power to decide what is a natural right, and what is not. That position is fraught with peril.

I get that. But how else do we protect Natural Rights? The founders didn't think we needed to codify them or at least all of them in order for them to be upheld. Very broadly the idea is captured in the Declaration about self-evident, inalienable rights to life, liberty, and the pursuit of happiness. John Locke actually had property not happiness. But those all go together life, liberty, property, pursuit of happiness. That happiness coming from a more Aristotelian-Thomistic framework.

So back to my question, how else to do that or why are we so far from the founders today?

 

[Monahorns]

Does the 5th Amendment have any relevance? Or help answer my question above?

Amendment 5
- Protection of Rights to Life, Liberty, and Property

No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.

No person can be deprived of life, liberty or property without due process of law. Are EOs considered due process? I doesn't seem like it would.

If a church or business is being deprived of liberty to operate, shouldn't there be some process to do that other than a governor writing an order?

 

[Monahorns]

I think I am answering my own question. I think the principle could be used to protect liberty, but I keep confusing Federal/State issues. That means no part of the Constitution should be used to limit a State law/order, even if it is for a "good" cause.

 

[Mr. Deez]

Does the 5th Amendment have any relevance? Or help answer my question above?



No person can be deprived of life, liberty or property without due process of law. Are EOs considered due process? I doesn't seem like it would.

If a church or business is being deprived of liberty to operate, shouldn't there be some process to do that other than a governor writing an order?

I think I am answering my own question. I think the principle could be used to protect liberty, but I keep confusing Federal/State issues. That means no part of the Constitution should be used to limit a State law/order, even if it is for a "good" cause.

The Fifth Amendment doesn't, because it is a limitation on federal power. However, there is similar limitation on states through the 14th Amendment. This is a matter of procedural due process (meaning the due process doctrine that actually has real legitimacy).

However, procedural due process doesn't have to do with how a rule or law is made. It has to do with the procedural protections someone has before he is personally denied life, liberty, or property (such as in cout). For example, you have a right to counsel, right to cross examine witnesses, etc.

 

[Monahorns]

Can that in any way be applied to control over how private organizations operate? In a sense the State is depriving liberty.

 

[Mr. Deez]

I get that. But how else do we protect Natural Rights? The founders didn't think we needed to codify them or at least all of them in order for them to be upheld.

So back to my question, how else to do that or why are we so far from the founders today?

In practice, the founders did not do what you think they did. The early federal courts weren't on some big crusade to uphold natural rights against state governments.

However, there's another angle. The founders didn't view the federal judiciary as the sole or even the highest authority on the Constitution or natural rights. They weren't considered more authoritative than Congress or the states.