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Author Topic: Constitutional amendment proposal
scifibum
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quote:
In order to secure the liberties of the people, in accordance with freedom of conscience and religion, the operations and powers of government shall be exclusive of religion.

1) Congress shall make no law without a secular justification, and no government entity shall institute religious rules or promote religious beliefs. "Secular justification" may include philosophical reasoning intended to protect or further the liberties and interests of the people, but may not rest on premises exclusively founded in religion or theism.

2) The free exercise of religion is reserved to individuals and non-governmental organizations.

3) Individual rights of the people, including government officials, to free speech and freedom of religion are hereby affirmed.

What it would do:
1) Prevent laws that have a solely religious motive. Congress could never pass a law exempting the Flying Spaghetti Monster from FAA regulations to honor his noodliness, or ban a food because it is not kosher.
2) Public institutions, such as school boards, would not be permitted to promote religious ideas. Government buildings could not post religious texts (thereby promoting them).

What it would not do:
1) Prevent anyone from voicing a religious opinion.
2) Prevent laws that have both religious and secular justifications. Returning to a previous example, if the FSM exemption was part of a treaty that got us a lot of free spaghetti, it'd be OK.
3) Set us up for legalized murder or similar problems. "Thou shalt not kill, saith the Lord" may not be the sole justification for a law, but "Killing is bad for everyone" would be fine.

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Raymond Arnold
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I, of course, agree wholeheartedly.

I am certain the amendment would fail miserably though. Probably not worth the effort for another few generations.

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kmbboots
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Would be lovely. Not gonna happen.
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katharina
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The central tenet - a litmus test for legislation - is forbidden by the present constitution.

Additionally, the "secular basis" would have to be reviewed by someone. What a terrible idea to put so much power into so few hands.

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katharina
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In other words, the second tenet is fine, if a bit fluffy and pointless. The first is precisely the kind of tyranny the constitution was created to avoid.
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scifibum
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katharina, if we amend the constitution, you can't really say that the new text is unconstitutional, can you? [Smile]

I don't see how there's any sort of tyranny enabled by any part of what I suggested. Would you please give an example?

BTW, the process of testing the constitutionality of laws would not change. There's no additional power given to anyone - just a change in the rules they need to consider when something is challenged.

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scifibum
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Raymond, Kate...do you think this will be perceived as an attack on religion? (While awaiting clarification from katharina on why she thinks it's a tyrannical rule.)
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katharina
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Who decides if a law has solely a religious motive?

It will either be a rubber stamp - come up with any statement that has nothing to do with religion - or it becomes the ultimate tool of tyranny, with all laws needing to be run by a select group who decides if the non-religious reason is convincing enough.

How do those people get chosen? By vote? We do that already - they are called legislatures. If it isn't by vote, then it is creating a non-elected body that has the ultimate power, more power than all three branches of government, with no checks.

I prefer democracy and republicanism.

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kmbboots
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Considering that saying "Happy Holidays" instead of "Merry Christmas" is considered an attack on religion - Christianity specifically, yeah, I think this would be considered an attack.
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katharina
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Considered by whom? You can find someone who thinks anything. That doesn't mean anything.

Don't wrap yourself in the warm glow of righteous persecution and pretend that makes this an intelligent move.

To be clear, my objection is as outlined above - it is either a meaningless gesture or else a massively antidemocratic move that vacates the power of our legislatures.

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kmbboots
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quote:
Originally posted by katharina:
Who decides if a law has solely a religious motive?

It will either be a rubber stamp - come up with any statement that has nothing to do with religion - or it becomes the ultimate tool of tyranny, with all laws needing to be run by a select group who decides if the non-religious reason is convincing enough.

How do those people get chosen? By vote? We do that already - they are called legislatures. If it isn't by vote, then it is creating a non-elected body that has the ultimate power, more power than all three branches of government, with no checks.

I prefer democracy and republicanism.

I would think that such determination would be made by the Supreme Court, the way we always have determined whether laws are constitutional.
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katharina
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So the Judicial branch would gain the ultimate veto over the Legislative branch - a veto that cannot be overridden, unlike the Presidential veto.

Nine unelected people would have the power of all three branches of government. No more checks and balances. Congratulations - you just created an oligarchy.

Bad idea.

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Christine
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I largely agree with kat on this one, although I do agree with the spirit of the amendment. It's just that the line between religious and secular justification is too unclear and really, if I tried hard enough, I'm sure I could come up with a secular justification for nearly any law. So it doesn't really do anything.
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kmbboots
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kat, how is that different than what we already have? The Supreme Court has the power to determine if a law is unconstitutional. Has for a long time.

ETA: The checks and balances are that the Executive Branch appoints the justices and the Legislative Branch (Senate) approves the nominations.

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katharina
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First, the problem is that it is pre-emptive - instead of reviewing past laws, this sets up the Supreme Court to review proposed laws.

Second, judging the mere existence of a non-religious reason would turn it into a rubber stamp. An empty gesture.

Third, if it isn't just a rubber stamp, it would be judging the merits of a reason, not the existence of a reason. Unless the amendment also goes into excruciating detail about what constitutes a "good" reason, then the judicial branch will set what constitutes a good reason through precedent, which gives them power over the legislative branch.

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kmbboots
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As to your first point - how? Why do you think that it would be more pre-emptive than any other constitutional amendment?
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katharina
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You don't understand what checks and balances mean. This proposal vacates all power from the Legislative branch and reduces Congress to a rubber stamp.

What you are proposing gives the power of the Legislative Branch to the Supreme Court. At that point, you no longer have a republic.

I am sure you can find someone else in America who wants to live in an oligarchy, but that doesn't make it a good idea.

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katharina
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The Supreme Court reviews laws that have been passed an enforced. This would set them up to review proposed laws - in order for any law to get past, it has to pass the Supreme Court first.

Unlimited power over the legislative branch. One of the checks on the Judicial branch now is that the legislature doesn't have to run everything by them first - instead, only laws that are having material, unconstitutional effect make it to the Supreme Court, and that is only a small subset of laws. That limit of time and docket space is part of the checks and balances.

Part of the Judicial branch's power is that Congress can't override their decisions with enough votes. Part of Congress's power is that the laws they pass are the law unless someone has reason to challenge and it wends it way through the lower courts.

This proposal would skyrocket the power of the Judicial branch and decimate the power of the Legislative.

Bad idea.

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katharina
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Think about Schoolhouse Rock and How a Bill Becomes A Law. There is a reason you can't remember a "Send it to the Supreme Court for their okay" step.
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kmbboots
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Right. I don't know why you think this hypothetical amendment would be any different? It doesn't say anything about having to check with SCOTUS first.

"Congress shall make no law" doesn't in practicality mean that Congress doesn't - it just means that SCOTUS can ding it if it "wends its way" up to them. Just like with the first amendment which is phrased the same way.

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Raymond Arnold
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The bill would absolutely be seen as an attack on religion. However, I actually don't think the issue Kath has a problem with is actually a problem, because no review is necessary.

When the Bill is coming to the floor, whoever wrote it says "This law is a good idea because X." If they list only a religious reason, the Bill fails. If they list any other reason, the Bill can be passed if people vote on it.

This still leaves the problem of secular "motivations" that are clearly bad logic (which may or may not also be thinly veiled attempts to get religious stuff passed, i.e. "intelligent design is a theory!"). It would be nice to have a law that simply said "Any Bill passed must be grounded in logical, demonstrable reasoning that is beneficial to the American people."

That does leave you with a somewhat sketchy review process. Is taxing one group of people to benefit another group of people logical? Who decides?

I guess most laws would be fine unless someone went out of their way to challenge their constitutionality. But there are laws on the books right now (such as the religious test to be in the legislature of some states) which are clearly unconstitutional already but no one bothers challenging because they don't feel like going through the effort.

I don't think this amendment would really help much at all.

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Raymond Arnold
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quote:
Considered by whom? You can find someone who thinks anything. That doesn't mean anything.
During Christmas season I often feel like I can't throw a rock without hitting someone who's complaining about how Christmas is "under siege." Where I live anyway.

http://www.foxnews.com/story/0,2933,140742,00.html

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ricree101
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quote:
Originally posted by katharina:
The Supreme Court reviews laws that have been passed an enforced. This would set them up to review proposed laws - in order for any law to get past, it has to pass the Supreme Court first.

How would this cause that change?

Is this the phrasing that bothers you?

"Congress shall make no law..."

If so, then I think it's worth noting that this text simply mirrors the beginning of the First Ammendment. And as far as I know, this wording in the bill of rights has never been interpreted in that manner.


If this isn't the part that bothers you, could you please clarify.

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scifibum
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katharina, please review the first amendment. I consciously imitated the phrasing there.

I am decidedly not suggesting that laws have to pass a preemptive secular stamp of approval committee, in the judiciary or elsewhere.

Any test would be the same as tests for other constitutional requirements, such as "Congress shall make no law respecting an establishment of religion." A law could be challenged in the courts after it passes, but I'm not trying to require the sort of pre-emptive challenge you are afraid of. (Just as there isn't such a thing for establishment of religion.)

(I'm guessing this conversation inherited objections you made in a thread a year or two ago. I think you misunderstood then, and those misunderstandings propagated to this thread.)

Importantly, this would not alter the checks and balances a whit. Note that there is no language in the proposed amendment about powers.

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Kwea
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Not gonna happen, and I think that is a good thing.
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scifibum
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Kwea, I'd like to hear about why you think that is a good thing. I'd like to hear an example of a law that would be held unconstitutional, and why you think that would be a bad thing. [Smile]
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scifibum
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Christine:

"So it doesn't really do anything."

I think it would do a couple of things.

1) It would provide a way to challenge silly blue laws and other encodings of religious preferences that can't be justified without a religious arguments. This sort of thing can harm people. (For example, in a county populated with 90% people who won't go out to eat on Sunday because of their religion, and 10% people who would like to have a restaurant open on Sunday, a law closing restaurants on Sunday is unfair to the 10%. I'd like to protect against this kind of thing.)

2) It may lend weight to the secularist side of current controversies such as the ones I mentioned in the OP. (This is something I want to accomplish, while also assuaging fears that the text of the Constitution doesn't matter as much as judges' agenda, and also reaffirming that this doesn't limit the freedoms of individuals.)

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rivka
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quote:
Originally posted by Raymond Arnold:
If they list only a religious reason, the Bill fails. If they list any other reason, the Bill can be passed if people vote on it.

As determined by whom?
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Raymond Arnold
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The point is largely moot because I've since realized the answer that scifibum has been pointing to, which is the Supreme Court, which would only happen if someone went out of their way to challenge the law.
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scifibum
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quote:
Originally posted by rivka:
quote:
Originally posted by Raymond Arnold:
If they list only a religious reason, the Bill fails. If they list any other reason, the Bill can be passed if people vote on it.

As determined by whom?
As Raymond noted, I don't want some kind of pre-emptive test (other than the intelligence of the lawmakers who, after all, aren't attempting to pass Official National Religion laws on a regular basis).
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scifibum
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To recap:
- No change to process of enacting law.

- No change to checks and balances.

- I do anticipate actual effects - I don't think it'll be completely ineffectual. (Some things simply won't have a sufficient secular justification that will pass muster if challenged in the courts.)

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Raventhief
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quote:
Originally posted by scifibum:

1) It would provide a way to challenge silly blue laws and other encodings of religious preferences that can't be justified without a religious arguments. This sort of thing can harm people. (For example, in a county populated with 90% people who won't go out to eat on Sunday because of their religion, and 10% people who would like to have a restaurant open on Sunday, a law closing restaurants on Sunday is unfair to the 10%. I'd like to protect against this kind of thing.)

Aren't most of the blue laws you refer to state and local rather than federal? The proposed amendment is on a federal level.
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Raymond Arnold
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The proposed amendment provides a means for anyone in any state to challenge such laws, since the constitution supercedes state law.
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Samprimary
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It's an interesting idea but even if you fix up the legal ramifications and tighten the wording significantly, it would be viewed as a massive attack on religion and be met with a furious response by conservative christians.
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katharina
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Completely apart from the pre-emptive issue, it is still a bad idea.

What if it said "Congress shall make no stupid laws."

It is forbidding a kind of law, not a topic area. In that matter, it is completely unlike anything currently in the Constitution. It, like the proposed above, gives extraordinary powers to whomever decides what is a "stupid" law.

Forget that the word religion is involved. This is bad constitution-writing.

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TomDavidson
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Kat's absolutely right about this, guys. I sympathize entirely with the desire behind such an amendment, but it's completely unworkable.
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scifibum
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I'd really like to get a better explanation other than "unworkable." [Smile]

(Though I concede that it probably seems threatening to the religious right and may not be passable for that reason.)

I'm having a hard time extracting a meaningful objection out of katharina, since she keeps knocking down straw men instead of exploring actual implications. Maybe you'd be so kind, Tom?

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Kwea
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quote:
Originally posted by scifibum:
Kwea, I'd like to hear about why you think that is a good thing. I'd like to hear an example of a law that would be held unconstitutional, and why you think that would be a bad thing. [Smile]

lol


There are a TON of laws that have been held to be unconstitutional, and a lot of the time that is a very good decision.

I have been thinking about this for a little bit, trying to think of how to phrase it. I'll post why when I figure that out.

One thing that springs to mind is that I am not sure what this would do that isn't already being done. I think that people should be able to vote for a law regardless of why they like it. I also fear that this would be used to shut people down.

Any time to try to set up a system where you are trying to judge intent you tread on shifting ground. I already hear a lot of people attributing uncharitable motivations to people as it is. I think that this would just lead to people challenging laws they do't like simply to smear a politicians religious views, Or conversely, that a law someone didn't like could be attributed to their religious views, and their stated "secular" reasons dismissed out of hand.

Finally, I don't think it is possible, or even desirable most of the time, to separate your religious views from your secular ones. How do you do that in most important issues, such as abortion? Your feeling on that issue, just to pick a controversial one as an example, are almost certainly influenced by your religion (if you are religious).

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Rakeesh
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quote:
As Raymond noted, I don't want some kind of pre-emptive test (other than the intelligence of the lawmakers who, after all, aren't attempting to pass Official National Religion laws on a regular basis).
What other possible mechanism could there be for making the determination? The people pushing for laws founded in religious reasons are simply going to - quite easily - find secular justifications for what they're arguing for. Maybe not really good ones in all cases, but justifications nonetheless. And then you're in the position of determining if a given justification is actually good enough or if it's some religious disguise, and how on Earth would we go about that? Take gay marriage, just as the most relevant and easy example. A representative lobbied by Fred Phelps's church proposes an amendment to a bill guaranteeing marriage will only be between one man and one woman, citing studies that families are most well off in the 'traditional' nuclear family. Such studies do exist, though obviously there's a whole lot more to be said about the entire issue, and other studies broadening the understanding of it.

BAM! Secular justification for an obviously religiously-motivated addition to a law. Now...someone is in the position of deciding if the law is even fit to be voted on. And of course, what happens after this measure fails and Phelps realizes, "Hey, I need to get my guys into the committee that decides which laws are secular and which ain't?"

The best mechanism for what you're angling for is public persuasion to the point where the amendment is much, much less contentious and most everybody accepts that that's the way things ought to be. It's not a clear-cut issue.

And let's be clear: this wouldn't be 'interpreted' as an attack on religion, it would unabashedly be an attack on religion. Or at least religion as practiced by some people that a bunch of other people - myself included, actually - don't like.

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scifibum
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"What other possible mechanism could there be for making the determination?"

Sigh. Rakeesh, this was already addressed. I've been trying to establish that there's no reason to suppose there would be a committee (see thread). I don't know why people think that's required. (In fact, I think it's only because katharina introduced the idea, and it's a bit difficult to dislodge for some reason. No other restriction on the government imposed by constitutional amendment has required any such mechanism.)

<big letters>There's no up front mechanism.</big letters> It's a constitutional requirement; the only way you'd find that it wasn't met was through the courts. After a law was passed. (There's nothing here that requires any legal mechanism that would be novel or unique.)

I disagree that it would be an unabashed attack on religion. It would be an effort to avoid religious government, which I would argue is a different thing - one that I don't think should exist. [Smile]

I don't have much of a problem with the fact that religious groups will attempt to come up with secular arguments for things they want for religious reasons. As long as the debate is secular in its focus, it's an improvement, IMO. (I'll note that I think this already happens, at least in some levels of debate.)

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Rakeesh
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Yes, I noticed that, scifibum. What I meant and should have been more clear about was: what other mechanism besides the courts would exist?

Dude, of course there would be a committee on the subject for any bill under consideration. Maybe even a committee explicitly for that purpose, but certainly a committee that will consider the question among other things-it would be irresponsible to otherwise, if laws can be overturned on 'religiosity' grounds, after all.

The legal mechanisms used to answer the question wouldn't be unique, but the question they'd be asking and answering would be incredibly arbitrary.

As for attacking religion, it would be an effort to completely eliminate any penetration of religion into government, scifibum. Particularly the part about 'operations of government' being exclusive of religion. It says, "We're a representative society until you try and bring your deepest personal beliefs into it. Then we'd appreciate it if you'd just but out." I can certainly understand the motivation behind wanting such a thing, and even share it to some extent, but don't kid yourself: it's an attack.

It's just that it's an attack on people you are already certain are doing something wrong. It's an attack...an attack you think ought to be happening.

Ultimately, the real problem with your idea is that it lets the courts decide if an argument is truly secular or secretly religious. They won't be deciding questions of law and precedent.

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Lyrhawn
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scifibum -

If I might offer a possible alternative...call it a compromise that would structurally be far easier to pass:

Pass a parliamentary rule in the House and in the Senate saying that Congress must publish a reasoning behind why they want a bill to pass, and what they expect it to accomplish specifically.

That way, there are no grounds for the Courts to reject it, and thus no arbitrary reasoning is applied by a small body of individuals outside the democratic process. But at the same time, two things would be accomplished: Congressmen would be forced to preemptively defend their legislation, using whatever grounds they have at their disposal, and every bill would also have a measuring stick attached to it by which we could gauge success and failure when trying to ascertain whether or not a bill has achieved its stated purpose.

This way, it is left up to the people to decide whether or not the stated objectives and reasons are good or bad, and they can use their vote accordingly to compel Congressional behavior that they agree with.

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katharina
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As long as you are eliminating kinds of laws, why stop there?

No stupid laws.
No laws created to pander to special interests.
No laws that rise from regionalism.
No laws prompted by an emotional news story instead a rational assessment of need.
No redundant laws.
No laws that unjustly privilege one population over another.

"No laws motivated by religion" fits right in there. It is just as bad an idea.

If you think my argument has been against straw men, then you fail to understand the ramifications of what you are proposing.

You could add:
"No laws created without the members of Congress fully understanding the consequences of it."

[ February 13, 2010, 07:44 AM: Message edited by: katharina ]

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King of Men
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I applaud in principle, but I see two problems. First, your Constitution already has a perfectly good separation-of-church-and-state clause; you're just very bad at enforcing it. Second, you can't legislate people's stupidity away. (And, perhaps surprisingly, religion isn't where I'd start anyway. I'd go for some plain math and statistics first, if I were legislating intelligence.) In a democracy where most people are religious and care strongly about their religion, you're going to get religious laws. All you can do is educate, and fight each bad law as it comes. Truth prevails in the end.
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malanthrop
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Unfortunately, all aspects of the constitution are trumped by the Interstate Commerce clause and the "General Welfare". If you get a religious majority they could deem religion to be beneficial to the "general welfare" of the US. If they can attempt to subvert the second amendment and state's right under this argument, no amendment is sound.

A religious majority in power might decide the general welfare is best served by.......? They could decide that religion impacts interstate commerce.

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Kwea
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LOL
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BlackBlade
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I think katharina has said exactly what I would have said about this amendment, and in a much more concise manner.
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scifibum
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quote:
Originally posted by katharina:
As long as you are eliminating kinds of laws, why stop there?

No stupid laws.
No laws created to pander to special interests.
No laws that rise from regionalism.
No laws prompted by an emotional news story instead a rational assessment of need.
No redundant laws.
No laws that unjustly privilege one population over another.

"No laws motivated by religion" fits right in there. It is just as bad an idea.

If you think my argument has been against straw men, then you fail to understand the ramifications of what you are proposing.

You could add:
"No laws created without the members of Congress fully understanding the consequences of it."

Some of those comparisons are far better than others.

The "no stupid laws" comparison really is a straw man, because the terms "secular" and "religious" are far less subjective and vague than "stupid."

BTW, the proposed rule isn't "no laws motivated by religion." As Rakeesh notes, all you need is a secular justification. Not a secular motivation.

quote:
If you think my argument has been against straw men, then you fail to understand the ramifications of what you are proposing.
Up until this very latest post, you've indulged in attacking straw man versions of the proposal. *shrug* You certainly haven't made any effort to explain ramifications of what I've proposed - you've settled for explaining ramifications of distortions and misrepresentations of what I've proposed. Even in this latest post - which contains some analogies that seem more fair - you've still misrepresented the proposal as "no laws motivated by religion." So how do I know you even understand the proposal, if you're so determined to demonstrate misunderstanding? I can't take you seriously yet.
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katharina
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quote:
It would be an effort to avoid religious government
How about this:
Congress shall make no law respecting an establishment of religion.

Neat and consise, addresses the central beef, doesn't create a board of inquisitors tasked with mind-reading, and it is clear that it is prohibiting laws that establish religion with the power of the state behind it, rather than second-guessing at motivations and vacating the power of the Legislative branch.

Even misguided people get to vote. Even if their motives are suspect and their ideas are stupid. Considering the opening post, this is something you should be grateful for. [Wink]

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scifibum
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It'd be nice if someone could give me a good example of how this would go wrong. [Smile]

(kat: you're still at the same game. ETA: mind reading, restrictions on voting, and the creation of a board...all false, all reflecting that you aren't really paying attention)

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