Tag Archives: Constitution

General discussion, Plain Bad Arguments, Things that are false

What refutes what?

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Phyllis Schlafly is right about one thing: the Fourth of July is a good time to read the Declaration of Independence.  But she's wrong about pretty much everything else.  First, her timing is a little off — her posting is dated July 9, but she's giving advice about what to do on the 4th.  Maybe her plan was for us to remember what to do next year.   Second, she claims that the Declaration is a 'religious document.'  This seems a little thin, as her evidence is that:

The Declaration of Independence is the official and unequivocal recognition by the American people of our belief and faith in God. It affirms God's existence as a "self-evident" truth that requires no further discussion, debate or litigation.. . . The Declaration of Independence contains five references to God: God as Creator of all men, God as supreme Lawmaker, God as the Source of all rights, God as the world's supreme Judge, and God as our Patron and Protector. The Declaration declares that each of us was created; so if we were created, we must have had a Creator and, as the modern discovery of DNA confirms, each of God's creatures is different from every other person who has ever lived or ever will live on this earth.

Just for the record, I took a quick look at the Declaration, and I counted only four overt references to God.  One in the first paragraph, to Nature's God.  One in the second paragraph, that "we are endowed by our Creator….", and two in the final paragraph, one an oath to the Supreme judge of the world, and another about trusting 'divine providence.'  Now, with each of these, I don't (especially given the widespread deism of the day) see these as strongly theistic as Schlafly sees them.  Regardless, whatever these references mean, they aren't there as core commitments of the Declaration — the Declaration is about human rights and about the role of government (and also to list all the colonial grievances against the crown).  To put it on record that they all love God doesn't seem to be the point, but more a rhetorical element of the presentation of more (ahem) humanistic concerns.  If you use reference to God in making a point, that doesn't by necessity make your speech religious, because I often punctuate my angriest moments with "Goddammit!", but that hardly makes my speech religious.

Schlafly's third error is most troubling.  She claims:

The message of the Declaration of Independence is under attack from the ACLU and atheists because it refuted the lie about a constitutional mandate for "separation of church and state."

Wait.  That gets it backwards, doesn't it?  The whole point of the Constitution was to provide a framework for government that wasn't there in the Declaration. And in putting those things together, wasn't the objective to either supplement or correct the Declaration?  What about the First Amendment, the one that prohibits laws "respecting an establishment of religion"?  If the Declaration had a line that said anything about acknowledging and establishing a religion of the one true God (which seems to be Schlafly's reading), it's the Constitution that would refute that establishment, not the Declaration that would refute the Constitution. 

George Will, Ignoratio Elenchi

Fight for your right to party

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Here's a fun assignment.  Think of all of things you can do with yourself, then ask, do I have a constitutional right to do this? If it's not explicitly mentioned in the Constitution in unambiguous language, like the second amendment's unequivocal guarantee of your individual and unrestricted right to pack heat, then no, you don't have a right to it.  The second part was kind of a joke.  The first part not–you'll find that you have no explicit constitutional right to do most of the things you do.  So the fact that something you do or can do is not explicitly mentioned in the constitution does not ipso facto mean it's not a guaranteed right.  Or so I would think.  Not so much George Will.

In Roe, the court said that the 14th Amendment guarantee of "due process" implies a general right of privacy, within which lurks a hitherto unnoticed abortion right that, although it is "fundamental," the Framers never mentioned. And this right somehow contains the trimester scheme of abortion regulations.

Since 1973 the court has been entangled in the legislative function of adumbrating an abortion code the details of which are, Wilkinson says, "not even remotely suggested by the text or history of the 14th Amendment." Parental consent? Spousal consent? Spousal notification? Parental notification? Waiting periods? Lack of funding for nontherapeutic abortions? Partial-birth abortion procedures? Zoning ordinances that exclude abortion facilities? The court has tried to tickle answers for these and other policy questions from the Constitution.

Last thing first.  According to the Constitution, it's the judiciary's job to interpret the law.  The Supreme Court interprets all laws in virtue of their consistency with the U.S. Constitution.  That's its job.  Second,  did you think of any of the things  you do which aren't explicitly mentioned as rights?