4 ms·

I disliked the apparent banning of free online education, and think that would be wrong. But I don't think any of the so-called Constitutional guarantees are ab

I disliked the apparent banning of free online education, and think that would be wrong. But I don't think any of the so-called Constitutional guarantees are absolute. In practice they're violated all the time, strictly speaking. But they're allowed legally when the courts and legislatures feel there is some other greater concern, especialy in exceptional or edge cases. Can't yell fire in a crowded theatre, can't own a machine gun, not allowed to practice a religion that involves sacrificing animals (but farms allowed to do it, go figure), "separation of Church and State" principle but they'll cite the Judeo-Christian God in government documents and speeches and subsidize the income of state-approved religions (via income tax exemption), etc. "What the big print giveth the fine print taketh away." But yeah they may have backed down because they sensed either a political backlash brewing or a legal challenge coming their way, either of which would be painful.

dmix 14y ago
> But I don't think any of the so-called Constitutional guarantees are absolute. What's the point of having a constitution if it's NOT absolute and then consistently ignored by government at will?
- mkramlich 14y ago
  good point. and there are millions of other folks out here who've wondered the same.
btilly 14y ago
not allowed to practice a religion that involves sacrificing animals (but farms allowed to do it, go figure) Citation please. Note that http://en.wikipedia.org/wiki/Church_of_Lukumi_Babalu_Aye_v._City_of_Hialeah http://en.wikipedia.org/wiki/Church_of_Lukumi_Babalu_Aye_v._... suggests that animal sacrifice is protected under the Constitution.
- mkramlich 14y ago
  I know for a fact there are animal cruelty laws on the books in many jurisdictions. If you go to the cops and courts and say, "but it's part of my religion, we do animal sacrifice" you then are at the mercy of the courts to decide which law takes precedence. the Constititional law saying the government shall not interfere with the establishment of any religion, or, the ability of states and local jurisdictions to enact laws regulating what citizens can and cannot do. If any given Constitutional clause or amendment was somehow always and without exception enforced, US society would be very different because individuals could make excuses left and right to excuse otherwise illegal behaviors as being protected by the Constitution. That doesn't happen. Therefore no provision (or most of them anyway) is absolute, either in a literal sense or in spirit. Heck look at the clause that says Congress must declare war -- yet the government has engaged in hundreds of military adventures across the world, without a declaration of war ever being made or even requested, by the Executive branch. The Constitution is truly "just words on paper" and the government effectively just does whatever it can get away with. That's what the historical record suggests anyway.
  - saraid216 14y ago
    > I know for a fact there are animal cruelty laws on the books in many jurisdictions. If there are, they are a matter of public record and probably even online. You could provide citations.
  - btilly 14y ago
    I am not debating the fact that the Constitution as interpreted is not the Constitution as written. However you made a very specific claim that flies in the face of what I understand the interpretation to be. I would be interested in a citation. (I've already given a citation of the Supreme Court ruling in favor of animal sacrifice on grounds of religious freedom.)
001sky 14y ago
But I don't think any of the so-called Constitutional guarantees are absolute. -- A "Free" Education = precisely founder's intent Whatever legal carve-outs there are from No 1, this seems more like a poster child on why the bill of rights exists. Smart guy A wants to talk to Smart guy B, with no money changing hands, no promises being made. On topics that are verifiably beneficial to society, and on terms in line with society norms (historically). This <whatever-you-want-to-call-it> should not need a permit, a lawyer, or a PR flack. Is the state to have this law amended or taken off the books? It should if it is written in such a way that this is a decision of descretion by a gov't official. But for that, someone will probably need to sue (and waste everyone else's $$). Ugh.
andrewflnr 14y ago
"Separation of church and state" is not in the constitution, and (more or less) any non-profit can be tax-exempt.
- mkramlich 14y ago
  That phrasing is not, agreed. But it's pretty well known among serious historical scholars that it was a principle held in esteem by the Framers. But let's go directly to the Constitution itself. To wit, the 1st Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Any reasonable person just can't believe this Amendment is truly and effectively the law of the land, as practiced, if you see all the references to the Judeo-Christian God in government documents, ceremonies, speeches and buildings. Also there are any number of religions, both actual and possible, whose free expression is prohibited by one or more other laws enforced by the government. The counter-argument is to say, well, the government honors this amendment by not explicitly forcing anyone to be Christian, and by not explicitly respecting Judaism/Christianity over others, and not explicitly and directly forbidding any given religion in particular, etc. But in effect, it clearly does these things, in effect, if not at a superficial level. A better argument you could make is to say that the principle of the separation of Church and State, taken literally, is honored by the government. And taken very literally, it is. Because the government is not a religion and does not operate any churches. But the counter-argument there of course is that the US national government is a religion (there are hymns, myths, icons, rituals, blind obediance to external authority lest you be punished, patronization, you're forced to tithe, etc.) and that the government does operate churches (buildings you visit regularly, or feel obligated too out of moral/civic duty, with anachronistic architectural styling, icon imagery, rituals, tithing, authority submission, explainers of exotic and sometimes seemingly anachronistic and overly detailed codes of morality and punishment and how they apply to your life, etc.) Just because something isn't called a church, doesn't mean it isn't, goes this kind of argument. And I think it's a pretty enlightening one. Any non-profit, that otherwise follows the rules, and is approved, can be tax-exempt. But you can't just create any arbitrary religion and have it recognized by the legal system and approved. The State has to approve your religion, else you don't get the tax exemption. And I'm not speaking as someone who personally wants to do that. The point of fact is important for understanding the relationship of the US government to religion, in actual reality. Not in theory, not in some ideal world of words. But in reality.
saraid216 14y ago
> But I don't think any of the so-called Constitutional guarantees are absolute. What does "absolute" mean? The Constitutional guarantees are probably absolute, depending on what your idea of it is. What they aren't is comprehensively understood. You don't really seem to understand how the government works. This is what happens. A law is written. This is the first gate; someone has to actually care enough to put it down on paper. This law can have arbitrary text and mandate arbitrary terms. It needs to be agreed upon by a good 500 people who are at least nominally looking out for the best interests of the full 310-million-person population. In the specific case of the OP, the Minnesota Legislature is about 200 persons representing 5 million. That's the second gate; a court of mild scrutiny. Then it has to be plausible enough for the elected president or governor to agree to enact it and actually do it. That's the third gate. At this point, and only at this point, does something like this have the opportunity to happen. This is the point at which something like owning a machine gun becomes illegal, and the police are allowed to arrest people who do. There are a couple routes into the next stage, but this is the easiest to understand. The state decides to press charges against the offender under the aforementioned law. The lawyers involved may wish to ask the judge about the constitutionality of the law. Groups like the EFF and the ACLU watch for opportunities like this to step in on behalf of the defendant or plaintiff precisely in order to point out the unconstitutionality of certain laws and bring to bear the not-inconsiderable weight of their legal experience to prove it to the judge, who must make the final call. And, in case the judge makes a poor judgement (corruption, ineptness, etc.), there is a hierarchy of appeals that ends at the SCOTUS. It is usually through this mechanism that something like yelling "fire" is made illegal: Justice Holmes used it as a metaphor to establish a precedent, a test by which future judges could determine whether or not this was a reasonable exception to the broad stroke of the First Amendment. Democracy is a lot more than a list of ten short paragraphs. Each of those rights have to be justified and defended and their nuance spelled out clearly based on actual events that occur in reality. What does free speech mean if, let's pretend, we had people who could reliably and provably enact mind control through speech? Is executing a heinous criminal without last rites a cruel and unusual punishment if we were certain there existed a Hell to which they'd be tortured for eternity? If everyone could be reasonably expected to own and effectively use a sniper rifle, is it self-defense to murder someone who threatens to shoot you? Upholding one's rights isn't easy, and it's made especially uneasy by the minor detail that we occasionally have no idea what they actually are in some specific case.

dmix 14y ago

> But I don't think any of the so-called Constitutional guarantees are absolute. What's the point of having a constitution if it's NOT absolute and then consistently ignored by government at will?

mkramlich 14y ago
good point. and there are millions of other folks out here who've wondered the same.

btilly 14y ago

not allowed to practice a religion that involves sacrificing animals (but farms allowed to do it, go figure) Citation please. Note that http://en.wikipedia.org/wiki/Church_of_Lukumi_Babalu_Aye_v._City_of_Hialeah http://en.wikipedia.org/wiki/Church_of_Lukumi_Babalu_Aye_v._... suggests that animal sacrifice is protected under the Constitution.

mkramlich 14y ago
I know for a fact there are animal cruelty laws on the books in many jurisdictions. If you go to the cops and courts and say, "but it's part of my religion, we do animal sacrifice" you then are at the mercy of the courts to decide which law takes precedence. the Constititional law saying the government shall not interfere with the establishment of any religion, or, the ability of states and local jurisdictions to enact laws regulating what citizens can and cannot do. If any given Constitutional clause or amendment was somehow always and without exception enforced, US society would be very different because individuals could make excuses left and right to excuse otherwise illegal behaviors as being protected by the Constitution. That doesn't happen. Therefore no provision (or most of them anyway) is absolute, either in a literal sense or in spirit. Heck look at the clause that says Congress must declare war -- yet the government has engaged in hundreds of military adventures across the world, without a declaration of war ever being made or even requested, by the Executive branch. The Constitution is truly "just words on paper" and the government effectively just does whatever it can get away with. That's what the historical record suggests anyway.
- saraid216 14y ago
  > I know for a fact there are animal cruelty laws on the books in many jurisdictions. If there are, they are a matter of public record and probably even online. You could provide citations.
- btilly 14y ago
  I am not debating the fact that the Constitution as interpreted is not the Constitution as written. However you made a very specific claim that flies in the face of what I understand the interpretation to be. I would be interested in a citation. (I've already given a citation of the Supreme Court ruling in favor of animal sacrifice on grounds of religious freedom.)

001sky 14y ago

But I don't think any of the so-called Constitutional guarantees are absolute. -- A "Free" Education = precisely founder's intent Whatever legal carve-outs there are from No 1, this seems more like a poster child on why the bill of rights exists. Smart guy A wants to talk to Smart guy B, with no money changing hands, no promises being made. On topics that are verifiably beneficial to society, and on terms in line with society norms (historically). This <whatever-you-want-to-call-it> should not need a permit, a lawyer, or a PR flack. Is the state to have this law amended or taken off the books? It should if it is written in such a way that this is a decision of descretion by a gov't official. But for that, someone will probably need to sue (and waste everyone else's $$). Ugh.

andrewflnr 14y ago

"Separation of church and state" is not in the constitution, and (more or less) any non-profit can be tax-exempt.

mkramlich 14y ago
That phrasing is not, agreed. But it's pretty well known among serious historical scholars that it was a principle held in esteem by the Framers. But let's go directly to the Constitution itself. To wit, the 1st Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Any reasonable person just can't believe this Amendment is truly and effectively the law of the land, as practiced, if you see all the references to the Judeo-Christian God in government documents, ceremonies, speeches and buildings. Also there are any number of religions, both actual and possible, whose free expression is prohibited by one or more other laws enforced by the government. The counter-argument is to say, well, the government honors this amendment by not explicitly forcing anyone to be Christian, and by not explicitly respecting Judaism/Christianity over others, and not explicitly and directly forbidding any given religion in particular, etc. But in effect, it clearly does these things, in effect, if not at a superficial level. A better argument you could make is to say that the principle of the separation of Church and State, taken literally, is honored by the government. And taken very literally, it is. Because the government is not a religion and does not operate any churches. But the counter-argument there of course is that the US national government is a religion (there are hymns, myths, icons, rituals, blind obediance to external authority lest you be punished, patronization, you're forced to tithe, etc.) and that the government does operate churches (buildings you visit regularly, or feel obligated too out of moral/civic duty, with anachronistic architectural styling, icon imagery, rituals, tithing, authority submission, explainers of exotic and sometimes seemingly anachronistic and overly detailed codes of morality and punishment and how they apply to your life, etc.) Just because something isn't called a church, doesn't mean it isn't, goes this kind of argument. And I think it's a pretty enlightening one. Any non-profit, that otherwise follows the rules, and is approved, can be tax-exempt. But you can't just create any arbitrary religion and have it recognized by the legal system and approved. The State has to approve your religion, else you don't get the tax exemption. And I'm not speaking as someone who personally wants to do that. The point of fact is important for understanding the relationship of the US government to religion, in actual reality. Not in theory, not in some ideal world of words. But in reality.

saraid216 14y ago

> But I don't think any of the so-called Constitutional guarantees are absolute. What does "absolute" mean? The Constitutional guarantees are probably absolute, depending on what your idea of it is. What they aren't is comprehensively understood. You don't really seem to understand how the government works. This is what happens. A law is written. This is the first gate; someone has to actually care enough to put it down on paper. This law can have arbitrary text and mandate arbitrary terms. It needs to be agreed upon by a good 500 people who are at least nominally looking out for the best interests of the full 310-million-person population. In the specific case of the OP, the Minnesota Legislature is about 200 persons representing 5 million. That's the second gate; a court of mild scrutiny. Then it has to be plausible enough for the elected president or governor to agree to enact it and actually do it. That's the third gate. At this point, and only at this point, does something like this have the opportunity to happen. This is the point at which something like owning a machine gun becomes illegal, and the police are allowed to arrest people who do. There are a couple routes into the next stage, but this is the easiest to understand. The state decides to press charges against the offender under the aforementioned law. The lawyers involved may wish to ask the judge about the constitutionality of the law. Groups like the EFF and the ACLU watch for opportunities like this to step in on behalf of the defendant or plaintiff precisely in order to point out the unconstitutionality of certain laws and bring to bear the not-inconsiderable weight of their legal experience to prove it to the judge, who must make the final call. And, in case the judge makes a poor judgement (corruption, ineptness, etc.), there is a hierarchy of appeals that ends at the SCOTUS. It is usually through this mechanism that something like yelling "fire" is made illegal: Justice Holmes used it as a metaphor to establish a precedent, a test by which future judges could determine whether or not this was a reasonable exception to the broad stroke of the First Amendment. Democracy is a lot more than a list of ten short paragraphs. Each of those rights have to be justified and defended and their nuance spelled out clearly based on actual events that occur in reality. What does free speech mean if, let's pretend, we had people who could reliably and provably enact mind control through speech? Is executing a heinous criminal without last rites a cruel and unusual punishment if we were certain there existed a Hell to which they'd be tortured for eternity? If everyone could be reasonably expected to own and effectively use a sniper rifle, is it self-defense to murder someone who threatens to shoot you? Upholding one's rights isn't easy, and it's made especially uneasy by the minor detail that we occasionally have no idea what they actually are in some specific case.