Rally around Cruz? Never!

An article on the Chicago Tribune website entitled “To stop Trump, GOP establishment must rally around Cruz.” The author, John Kass, claims that the only way for the establishment to stop Donald Trump is to back Cruz. And to me, generally supportive of the establishment, this article s plain and simple anathema. The fact is that Cruz represents everything bad within the Republican party. He is simply a bigot, far more than Trump. Note that John Fea of Religion News Service says:

Cruz wants to “restore” the United States to what he believes is its original identity: a Christian nation.

Fea's article is worth reading. And it points out that Cruz' attitude is disavowed even by many “evangelical Christians.” As a non-Christian myself, I believe that the vision of Thomas Jefferson, James Madison, and others of a nation with a total separation of church and state is the correct one. And no matter what else may be a point of agreement between myself and Ted Cruz, I cannot support him. He wants this to be a Christian nation, and that is not a nation in which I can live. I will even support Trump, if it is the only way to deprive Ted Cruz of the nomination.

The "settled law" argument

Liberals like to say that “Obamacare is a law passed by Congress, signed by the president, and upheld by the Supreme Court.” The arguments by “Sundance” on “The Last Refuge” blog should dispose of that. But in any case, any law Congress can pass, Congress can repeal. In 1798, Congress passed the Alien and Sedition Acts. There was no Supreme Court test of these, because prior to 1803, the Supreme court had not declared an act of Congress unconstitutional, but these laws were certainly as much settled law as Obamacare is now. Yet people as high as the Vice-President of the United States at the time, Thomas Jefferson, were so strongly opposed that Jefferson helped author state legislative resolutions against their enforcement. (Jefferson was the author, not publicly acknowledged at the time, of the Kentucky resolution, while another future President, who is acknowledged as well as the author of much of the Constitution, James Madison, had a similar rôle regarding the Virginia resolution.)

No law is ever totally settled. And anyone who thinks a law is a bad one certainly has the right to work for its repeal. If Thomas Jefferson and James Madison could take the actions they did on the Alien and Sedition Acts, no Republican should be considered unreasonable for opposing, by all means possible, Obamacare. (Even a Constitutional amendment is not beyond repeal. Look at the history of the Eighteenth Amendment, and the Twenty-first.)

You are also invited to read posts by Nick Gillespie on the Reason.com blog, and by Noemie Emery on the Washington Examiner's site.

Separation of church and state

I find it hard, this time of the year, to figure out what to respond to people who wish me "Merry Christmas." Since this isn't Nazi Germany, we Jews don't go around wearing badges that say "Jew," so many of them are simply innocently making an assumption that everyone they meet celebrates Christmas, and I don't really want to start an argument with such people, so I'm stumped for a reply. Sometimes I simply say "Happy New Year"; my wife says "Happy holiday"; but neither seems quite the right response. (Often I just nod to acknowledge it. But even that does not seem the right response.) And also there are people who do it quite deliberately: I saw a column recently by someone who said she always wishes people "Merry Christmas" and was happy to note that others wish her "Merry Christmas" in reply; she takes that as approval. People like that I would happily start an argument with, but I can't tell the two apart, so I'm stuck.

We find people arguing that "separation of church and state" is not proclaimed in our Constitution. Truly, those specific words do not appear. But neither do the words "air force." Yet nobody would say that the Constitution only provides for an army and navy, and the other branches of the Defense Department were unconstitutionally established. Not even Justice Antonin Scalia would hold to that literal an interpretation of the Constitution. So we really have to go to the intent of the people who wrote the Constitution. The Constitution itself says that "no religious test shall be required" for any office. And the First Amendment, which many of us (myself included) consider to be one of the most important parts of the Constitution, forbids an "establishment of religion." Now, many "religious conservatives" maintain that the First Amendment simply forbids raising one form of Christianity above another; I think that George Washington, who wrote the famous "to bigotry no sanction" letter, would put that idea to rest.

I think the biggest expert on the meaning of the Constitution in this regard has to be James Madison. He is widely believed to have written much of the Constitution itself; he certainly did write many of the papers called "The Federalist" which explained the Constitution to the people. And he was also the author of the ten amendments that constitute the Bill of Rights, including that First Amendment which we are discussing here. And if you read my earlier post on reading fhe Constitution, you will see that Madison, at least, believed in a very strict separation of church and state. So I think we are on strong ground in defending that separation.

On reading the Constitution

There are two conflicting philosophies on reading the Constitution, or so it seems: "original intent" and "the living Constitution." But there is no reasonable way of following either of these in a consistent manner.

Justice Antonin Scalia is a great disciple of the concept of "original intent." In other words, provisions of the Constitution need to be understood in the way that was understood by the Founders of this country at the time they were writing those words. The problem with this "original intent" philosophy is that it doesn't address the question of whose intent. For example, the First Amendment (as well as all nine others in what we call the "Bill of Rights") was drafted by James Madison. There are arguments currently as to what the Establishment Clause means, but it is clear that Madison, specifically, meant the kind of aggressive separationism that I myself advocate (thugh, as we will see below, only on a Federal level). We have examples of correspondence that prove this. (The "wall of separation between Church and State" often cited by separationists is, it is true, not in the text of the First Amendment, but in a letter sent by President Thomas Jefferson to some people in Connecticut asking for assistance. But Jefferson and Madison were close allies, and there is correspondence between the two of them that establishes that on the issue of separation between Church and State, the two thought alike. And it is not only to Jefferson that Madison wrote in such terms. On July 10, 1822 he wrote to Edward Livingston as follows:

Every new & successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion & Gov will both exist in greater purity, the less they are mixed together.

It is quite clear what his position was.) But when the First Amendment was approved by Congress and the States, it is also true that not everyone held Madison's view. So whose interpretation of the First Amendment applies?

And in 1791, when it was approved, of course, the First Amendment did not apply to the States. The Thomas Jefferson letter that was cited regarding the "wall of separation between Church and State" in fact was in response, as I said earlier, to some Connecticut residents asking for relief from the provisions of Connecticut law establishing the Congregationalist Church (which continued until 1833!) and in it he also stated that he, as President, could not do anything about a State law.

So "original intent" has its problems. On the other hand, treating the Constitution as a living document runs into its own problems. Every citizen, not to mention every Supreme Court Justice, has his own idea as to what a term in the Constitution means. So if one Justice feels that the death penalty is now "cruel and unusual," while another feels the opposite, who is right? I don't really know the answer.