Lamar W. Hankins : Alcoholics Anonymous, Nonbelievers, and the Constitution

Alcoholics Anonymous "praying hands" medallion. Image from Alternatives in Treatment.

Alcoholics Anonymous, nonbelievers, 
and the Constitution

AA proponents argue that the 'higher power' found in its steps can be whatever one wants it to be. Yet plainly religious practices go on at AA meetings, such as prayer, scripture-quoting, and the crediting of a supernatural 'higher power.'

By Lamar W. Hankins / The Rag Blog / August 1, 2013

Every day, courts throughout the country require people placed on probation for alcohol-related offenses to attend 12-step treatment programs. Often, Alcoholics Anonymous (AA) is specifically named as the program they must attend, and a probationer may be required to attend one AA meeting each day for 30 days or more.

This raises two important questions: 1) Is AA a religion-based program? 2) If so, does it violate the First Amendment rights of probationers to require attendance at AA meetings?

Since 1996, at least 12 federal district and appellate courts have found that AA is religion-based. Thus, mandatory attendance at AA meetings as a condition of probation (or parole) violates the Establishment Clause of the First Amendment.

Of course, if there is a secular program that serves the same purpose as AA, attendance at that program can be made mandatory because no Establishment Clause problem affects secular programs. But no other alcohol recovery program of which I am aware provides as many meetings as does AA. With over 100,000 meetings worldwide and nearly 2 million members, all other programs are dwarfed by AA.

I do not oppose AA. Many of my friends, relatives, acquaintances, and clients benefit from AA. But I have also known people who find AA meetings that emphasize religion or religious practices unacceptable, preventing them from benefiting from the program.

Not all AA meetings are the same, though it is probably fair to say that most AA groups include religion in their meetings. Some people who reject religion are able occasionally to find a group that has a more secular approach that is not offensive to their core beliefs.

But every one of the 12 federal courts and one state court that I have found that has ruled for the record on this issue has held that AA is religious-based and that offenders cannot be constitutionally compelled to attend AA meetings.

There is irony in this situation. AA is widely acknowledged as founded by Bill Wilson (Bill W. in AA parlance) and Bob Smith, but others joined them in creating what is arguably the most successful self-help program to help alcoholics overcome (or at least manage) their problems with alcohol.

Bill W. wrote the first version of the 12 Steps that at least 10 people began using in 1938 to get and stay sober. But two members of the group, Jim Burwell and Hank Parkhurst, objected to the emphasis on faith, religion, and religious practice they encountered when they began to attend meetings.

Wilson reported in “The Twelve Steps and Twelve Traditions” that Burwell said in their first encounter, “I can’t stand this God stuff! It’s a lot of malarkey for weak folks. The group doesn’t need it and I won’t have it. To hell with it.”

Burwell could not accept the idea of Christian redemption that most of the group was preaching. When Burwell started to drink again a few months later, the members of the group turned against him and refused to help him again. After Burwell regained his sobriety and would not stop attending the meetings, the group once again accepted him in spite of his anti-religion attitude.

Wilson initially refused to change any of the ideas he had enunciated in “The 12 Steps,” which he wrote on a scratch pad in pencil in May 1938. But Burwell and Parkhurst would not go along with the use of the word God in the original draft. They represented 20% of the original group and Wilson did not want to lose them, so he relented.

As Susan Cheever, a columnist for The Fix recently explained:

Finally a compromise was reached, and four key changes in the document were agreed to. In Step Two, “a Power greater than ourselves” replaced “God.” In Steps Three and Eleven, the single word “God” was qualified by the addition of “as we understood Him.” “On our knees” was cut from Step Seven. And the sentence “Here are the steps we took which are suggested as a Program of Recovery” was added to introduce all the Steps; they were being offered as “suggestions” rather than imposed as “rules.”

It was Jimmy Burwell’s uncompromising stance against religion that initially forced Alcoholics Anonymous into the tolerant, open and welcoming group that has helped more than two million believers, agnostics and atheists. It was Burwell and Parkhurst who bridled at Bill’s original “God”-centered Step Three and pestered the group into the all inclusive revision, “God as we understood Him.” And it was Burwell whose “bad behavior” was the foundation of the Third Tradition in which the only requirement listed for AA membership is a desire to stop drinking.

After at least 100 men were participating in AA, Wilson began dictating what became known as “The Big Book,” which was edited and revised by all who were then participating in the program. Burwell later became the unofficial archivist for AA, though his secular views never changed. Burwell retained his sobriety until his death at age 76 in 1974.

In 1941, Jack Alexander wrote an article about AA for the Saturday Evening Post, which established the program as what Cheever calls “a serious and effective option for alcoholic treatment.” Cheever summed up Wilson’s attitude toward Burwell and Parkhurst:

In “Alcoholics Anonymous Comes of Age,” Bill Wilson paid tribute to Burwell, Parkhurst and the changes they forced in AA’s principles: “This was the great contribution of our atheists and agnostics. They had widened our gateway so that all who suffer might pass through, regardless of their belief or lack of belief.”

Any AA group that is intolerant of atheists, agnostics, and religious nonbelievers fails to appreciate the history of AA and has too narrow a view of what makes AA successful. From my observations over the years, I have concluded that it is the assistance that members provide to one another that makes AA work. Each member helps others stay sober and, in turn, is helped.

The best AA programs provide a form of cognitive behavior therapy in which participants look at themselves honestly and openly, identifying the feelings, thoughts, and behaviors that cause them problems. With the help of one another, members find ways to avoid their dysfunctional feelings, thoughts, and behaviors.

Psychologists and psychotherapists might suggest journaling, role-playing, relaxation techniques, and mental distractions as coping strategies. In the best AA programs, members practice these or similar strategies, including having someone available day or night to provide support.

The “Serenity Prayer” that is a part of AA (“God, grant me the serenity to accept the things I cannot change, courage to change the things I can, and wisdom to know the difference”) recognizes what writer and psychology educator Kendra Cherry says is the purpose of cognitive therapy: “The goal of cognitive behavior therapy is to teach patients that while they cannot control every aspect of the world around them, they can take control of how they interpret and deal with things in their environment.”

AA would appeal more to atheists, agnostics, and other nonbelievers if AA would make a conscious effort to be more inclusive. When that doesn’t happen, secular alternatives in some communities can serve the non-religious population, but their meetings are not as available to most people as are AA’s meetings.

Among secular alternatives to AA are Life Ring, which has one meeting in Texas, in Austin; Secular Organizations for Sobriety (SOS) has meetings in about 30 towns and cities in Texas, including Austin and Lockhart in Central Texas; Smart Recovery has no meetings in Texas; Women for Sobriety has an office in Pennsylvania, but no meeting information on its website; Rational Recovery has one meeting location in California and one in Iowa.

In contrast, even in most small towns, one can find several AA meetings to attend every week.

Many AA proponents argue that the “higher power” found in its steps can be whatever one wants it to be. Yet plainly religious practices go on at AA meetings, such as prayer, scripture-quoting, and the crediting of a supernatural “higher power” for what is obviously a result of intensive support by the AA community.

I’m glad AA exists for those who need, want, and benefit from it. But we need other alternatives for those whose beliefs don’t harmonize with AA practices.

[Lamar W. Hankins, a former San Marcos, Texas, city attorney, is also a columnist for the San Marcos Mercury. This article © Freethought San Marcos, Lamar W. Hankins. Read more articles by Lamar W. Hankins on The Rag Blog.]

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Lamar W. Hankins : City Council and Religious Liberty in Central Texas

San Marcos, Texas, City Hall. Image from Wikimedia Commons.
Nearly half of Austin-area city
councils violate religious liberty

It doesn’t take clergy to remind council members of their duties, and there is little evidence that clergy provide any more moral authority than most of the rest of us.

By Lamar W. Hankins / The Rag Blog / December 4, 2012

SAN MARCOS, Texas -- An on-line review of agendas from 30 Austin-area communities reveals that almost half of area city councils use their elected positions to promote religion. Of those 30 towns and cities, 14 begin their meetings with invocations (usually prayers) according to their agendas. While nearly 47% of area municipalities promote this religious practice, the rest do not. Austin is the largest city in the area to do so.

The invocation practice I have studied the most, that of the City of San Marcos, demonstrates most of the problems with such government religious practices. San Marcos did not have such City Council prayers until then-Mayor Susan Narvaiz introduced the practice around 2006.

When Narvaiz (a recent Republican candidate for Congress defeated by Rep. Lloyd Doggett) became mayor of San Marcos in 2004, she set about to promote her evangelical religion through her elected position.

She may not have intended to attack the religious liberty of everyone who held different religious views, but that was the effect when she pushed all but one city council member to vote to begin having almost exclusively Christian prayers at the beginning of each regular meeting of the City Council. Apparently, divine guidance was not needed at special meetings and workshops.

While not everyone on the City Council at the time -- including some who voted for the practice -- approved of it, the fear of political reprisal caused most of them to go along with this disregard for the religious liberty of all San Marcos residents.

After challenges to the practice by the ACLU of Texas and Americans United for the Separation of Church and State, the City Council adopted a formal policy that, in effect, required nonsectarian prayers, but this requirement has been largely ignored by both the City Council and those included on its Invocation List -- mostly local ministers approved by the City Clerk to give invocations.

In 2009, after hearing in person from ACLU attorney Fleming Terrell at a city council meeting, the Council directed the City Attorney to promulgate an Invocations Policy that met the Council’s preferences and would satisfy the leading Supreme Court case in this area, Marsh v. Chambers, 463 U.S. 783 (1983).

Marsh was a lawsuit challenging the invocation practice of the Nebraska Legislature. In Marsh, the Supreme Court allowed limited legislative prayer based on history and custom as a narrow exception to the Constitution’s prohibition of an establishment of religion by a governmental body. Of course, San Marcos had no such history and custom.

In Marsh, the invocation prayers were directed only to legislators in the Nebraska Legislature. Offered by the Legislative Chaplain, they never included any reference to Jesus or other Christian symbols or language, so they did not “advance” Christianity.

Normally, these kinds of prayers are referred to as nonsectarian. But even nonsectarian prayers can lead a reasonable observer to conclude that the sponsor of the prayers (the San Marcos City Council in this case) favors religion over non-religion. When the prayers use the name of Jesus, or include Christian symbols and language normally identified with Christian doctrine or belief, a reasonable conclusion would be that the City Council favors Christianity over other religions.

The City Council policy, adopted on August 4, 2009 (Resolution 2009-97R), provided that the City Clerk would maintain a list of clergy who would give invocations on a rotating basis; that the clergy would represent all faith traditions that could be found in or out of the city; and that the invocations would not be used “to advance any one religion, disparage any other religion, or proselytize,” quoting some of the language from the Marsh decision. The policy also provided that any clergy who violated the policy could be removed from the rotation list.

I have periodically reviewed the implementation of this policy and have recently reviewed all 42 regular meetings between March 1, 2011, and November 20, 2012.

In 34 of the meetings, invocations were given. In eight instances, a moment of silence was observed because no clergy member was available to offer a prayer. Twenty-one of the 34 prayers referred directly to Jesus. Nine other prayers referred to Christian symbols or used language associated with Christian doctrine or belief. Nearly 90% of the prayers promoted Christianity in their content, an unmistakable violation of the holding in Marsh.

Introductions of the guest clergy is another way the invocations promote Christianity. When their names are announced, so are the names of the churches they represent. Fifteen of the organizations associated with the clergy who participated over the past 20 months are Christian groups. Announcing these Christian affiliations publicly further involves the City Council in promoting and advancing Christianity, just as announcing other religious affiliations advances those religions.

It should be noted that the council violated its own policy when those who gave prayers were not clergy associated with a particular religion. One was the chaplain for the San Marcos Fire Department; one was a student involved with the local Catholic Student Center and St. Jude’s Chapel; one was an employee of the San Marcos Baptist Academy; one was a member of a local Muslim group; one was introduced as a Bahá’í “pastor,” although Bahá’ís do not have pastors; and one person is a Native American who is the proprietor of a business -- the Cherokee Candle Shop.

The Invocation Policy resolution focuses on a brief summary of the Marsh decision. It does not concern itself with lower court decisions that have piled up since 1983 and that apply Marsh to other cases, some strikingly similar to the San Marcos situation.

For instance, in 2002, Rubin v. Burbank, 101 Cal.App 4th 1194, held that city council prayer ending “in the name of Jesus Christ” violated the Establishment Clause, even when only 20% of prayers had such references, citing Marsh as precluding prayers that advance any one religion.

In a decision eight years ago, Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir 2004), the court wrote:

The invocations at issue here, which specifically call upon Jesus Christ, are simply not constitutionally acceptable legislative prayer like that approved in Marsh. Rather, they embody the precise kind of "advance[ment]" of one particular religion that Marsh cautioned against.

In a footnote relevant to the San Marcos practices, the Wynne court found “that citizens customarily participated in the prayers by standing and bowing their heads. Indeed, citizens actively joined in the prayers by declaring ‘amen’ and sometimes ‘hallelujah’ at the conclusion.”

The practice of saying “amen” aloud at the conclusion of San Marcos prayers occurs at virtually every meeting. One pastor even invites the audience to join in his prayers by concluding with “And all God’s children said Amen,” which is always joined by a rousing chorus of “Amens” from the audience.

Frequently, those who give the invocations at San Marcos City Council meetings address the audience directly, importuning them to bow their heads or join with them in the prayer. In one instance the clergyman even interjected “hallelujah” and “glory” in his own prayer, giving it the flavor of a worship service.

It should be noted that the Wynne decision was appealed to the U.S. Supreme Court, but earlier this year that court refused to consider the case, so Wynne stands as an exemplar of the constitutional limits of city council invocation practice.

In another 2012 case, Galloway v. Town of Greece (New York), 681 F.3d 20, decided by the U.S. Court of Appeals, 2nd Circuit, the court held that town council prayers that contain Christian references two-thirds of the time, even when other faiths also give prayers, unconstitutionally affiliates the town with Christianity.

Many other facts about this case are strikingly similar to those surrounding the practices in San Marcos. The Town of Greece staff was responsible for inviting the clergy to give invocations, and the court noted the following:

A substantial majority of the prayers in the record contained uniquely Christian language. Roughly two-thirds contained references to "Jesus Christ," "Jesus," "Your Son," or the "Holy Spirit." Within this subset, almost all concluded with a statement that the prayer had been given in Jesus Christ's name. Typically, prayer-givers stated something like, "In Jesus's name we pray," or "We ask this in Christ's name." Some prayer-givers elaborated further, describing Christ as "our Savior," "God's only son," "the Lord," or part of the Holy Trinity. One prayer, for example, was given "in the name of the Lord and Savior Jesus Christ, who lives with you and the Holy Spirit, one God for ever and ever." Other prayers, including ones not expressly made in Christ's name, spoke of "the role of the Holy Spirit in our lives," and celebrated Christ's birth and resurrection.

In the last 20 months, I found almost identical examples of everything found in the above paragraph in reviewing San Marcos City Council prayers. The Galloway court went on to conclude its opinion with this relevant paragraph:

What we do hold is that a legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion violates the clear command of the Establishment Clause. Where the overwhelming predominance of prayers offered are associated, often in an explicitly sectarian way, with a particular creed, and where the town takes no steps to avoid the identification, but rather conveys the impression that town officials themselves identify with the sectarian prayers and that residents in attendance are expected to participate in them, a reasonable objective observer would perceive such an affiliation.

City Council prayers are politically difficult to change because of the very vocal and activist evangelical church members in our communities who like having the government promote their religion. In addition, most people resist understanding the constitutional issues involved because their religious views and attachments often lead to strong emotions and claims that not having government-sponsored sectarian prayer violates their religious rights.

But this view is false. Americans do not have a right to have the government sponsor and promote their religions.

As someone who is non-religious, however, government sponsorship and promotion of religious practices does violate my religious rights. By using the power of government to force the religious practices of a particular religion on me and others in the community who don’t follow the tenets of that religion, the City Council deprives me of my religious liberty.

While I respect everyone’s right to follow whatever religion they choose, I do not respect their right to force their religious beliefs on me at the instigation of the local government.

In effect, the City Council members imply that if they are not allowed to pray mostly Christian prayers at the beginning of each meeting, their own religious liberty will be harmed or will be at risk. Of course, such reasoning makes no sense. A person’s religious liberty is not at risk because that person can’t force others to participate in his or her religion.

City Council members have presumed that they have the right to compel their favored religious practices on others through the use of public funds, staff, buildings, and resources, but they should know better.

They fail to appreciate that no religious group should be given status as the official faith of the city, even for one meeting. The local government cannot elevate any religion to such a status without violating the Constitution.

Fortunately, there are some simple solutions to this constitutional problem. Invocations do not have to be prayers and they do not have to be given by religious leaders. Anyone can address the city council with words about its responsibilities devoid of any reference to divine guidance.

What every city council should do is keep the best interests of its citizens in mind, seek honest information in pursuit of that goal, avoid conflicts of interest, and make decisions on the basis of reason and evidence, rather than engage in subterfuge and false justifications.

It doesn’t take clergy to remind council members of their duties, and there is little evidence that clergy provide any more moral authority than most of the rest of us.

Each City Council member took an oath to uphold the Constitution. By their continued actions in using the city government to promote and sponsor sectarian prayer, each member of the council violates that supposedly sacred oath.

[Lamar W. Hankins, a former San Marcos, Texas, city attorney, is also a columnist for the San Marcos Mercury. This article © Freethought San Marcos, Lamar W. Hankins. Read more articles by Lamar W. Hankins on The Rag Blog.]

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Lamar W. Hankins : Government Plus Religion is No-Win Situation

Image from Change Comes Slow.
No one wins when government
forces religion on everyone

If public officials believe that religious worship is important, perhaps they should meet in a conference room before the meeting and pray together with their chosen clergy.

By Lamar W. Hankins / The Rag Blog / November 14, 2012

SAN MARCOS, Texas -- Those who see no harm in beginning a meeting of a city council, school board, or commissioners court with prayer owe it to the Constitution to take a few minutes and consider the perspective that the First Amendment’s prohibition against an establishment of religion means that the government is not allowed to force any religion -- or religion itself -- on its citizens.

For the moment, I will put aside the issue of sectarian versus nonsectarian prayer and focus on any prayer, whatever its content. Put simply, prayer is communicating with God or gods. Prayer is an act of religious worship. It is the most universal form of religious practice that I know of. There should be no doubt that prayer is a religious practice: people who are not religious or do not believe in the supernatural do not pray. Only religious people pray.

The prayer invocations regularly offered before meetings of government bodies are usually directed toward a deity, spirit, or amorphous supernatural being. They often express everyone’s reliance on the being and their desire to please said being. Usually they request guidance or help from the being and occasionally ask for special favors, such as rain or assistance for improving the performance of a favored athletic team.

When the government sponsors, promotes, or establishes prayer as a part of its activities, it is sponsoring, promoting, or establishing a religious practice, an integral part of religious worship. If any person wants to participate in the civic life of the community by attending, speaking at, or observing the meetings of elected officials who begin their meetings with prayer, that person must submit to a religious practice.

If the Supreme Court has been clear about anything in this area of jurisprudence, it is that the government may not sponsor, promote, or establish religion or religious practices, although it has permitted prayer not identified with a particular religion (nonsectarian prayer), because it views such prayer as insignificant, if not irrelevant.

For most elected officials, it seems that having an invocation before a meeting of a government body means offering a prayer. But “invocation” need not be so narrowly construed. Merriam-Webster defines invocation in other ways: “the act or process of petitioning for help or support” and “a calling upon for authority or justification.” Neither of these definitions necessarily suggests that an invocation be addressed to a god.

An invocation can be addressed to the governing body (rather than to a deity), to remind its members of their responsibility to serve the greater good; to respect the dignity of all citizens; to show no favoritism based on personal interest, race, religion, or party affiliation; to be open to the ideas of others; to use reason devoid of cant and deceit; to display compassion when that is needed; to seek answers to our problems through the ingenuity of our people; and to honor other ideals inherent in our history. An invocation need not be an act of religious worship or practice.

When it comes to fashioning an invocation for a home-rule city like the City of San Marcos, its charter will provide specific responsibilities of the city council that should be carried out, the goals of the city, the proper behavior expected of city officials, and any general standard that should always be kept in mind, such as “devotion to the best interest of the City.” There is no better way to help public officials always be aware of why they were elected than to regularly remind them of their proper role as found in their local constitution.

If an invocation is intended to set a tone for a meeting of our elected leaders, these suggestions seem to accomplish that purpose, and they do so without engaging in any religious practice or worship. If they express opinions about how the body or its citizens should act that the listener disagrees with, that listener should be able to get on the invocation list and offer a non-prayer invocation that he or she believes is more in keeping with our shared values and the purpose of the governing body.

Part and parcel of the prayer problem is limiting who may give invocations to clergy. Clergy are expected to pray. That is why they are invited to give the invocation. All of the official invocation policies that I have seen single out clergy to provide the invocations -- clear evidence that the purpose of the invocation is to engage in the practice of religion.

Many of our elected representatives are religionists first and public officials second. It should be the other way around. Religionists want to use the government to impose their religious beliefs on the rest of the population, ignoring the rights of all citizens to have the autonomy to make their own religious and moral decisions.

This was the case with both the Hays County Commissioners Court and the San Marcos City Council. When Jim Powers began his tenure as Hays County Judge and Susan Narvaiz began her tenure as Mayor of San Marcos, both decided for their own religious reasons to have their respective governmental bodies begin using prayers to start their meetings. They used their public positions to have the government promote their private religious beliefs. For many decades, both bodies had functioned just fine without the prayerful invocations.

Having the government force religious positions on other people has always created great turmoil in society, and it has corrupted both the government and the religious groups involved. For these reasons, the drafters of the Constitution sought to keep government out of religion.

They had seen what happened in England to religious liberty when the state and religion are intertwined, and they had witnessed the disorder, dissension, and destruction brought about in various colonies by an alliance between government and religion. James Madison was aware also of the example of Holland where religion and government were kept separate so that each person had full religious freedom and freedom of conscience.

Even the Texas Constitution, in spite of its frequently inappropriate religiosity (much of which has been invalidated by the Supreme Court as infringing on the guarantees and provisions of the U.. Constitution), provides that no one “shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship.”

This is precisely what religious prayers as invocations do to all the citizenry. They maintain a ministry without the consent of all those who want to participate in local government. They interfere with the right of conscience in matters of religion. They give preference to certain religious groups and subject those in attendance at meetings to religious worship.

Those who suggest that anyone who disagrees with the prayers can absent themselves from that part of the meeting have not thought fully about this suggestion. The way the San Marcos City Council functions, for instance, it is not possible to know when the invocation will be held. The Council often begins meetings with lengthy workshops, starts the business meeting by convening into executive session, delays the invocation until after other business is conducted, or waits until the clergy scheduled to give the invocation arrives at the meeting.

Should the Mayor announce in advance that a moment will be given for all those who don’t want to engage in prayer to leave the room? Will that person’s seat be saved or taken by another during the person’s absence? Avoiding the prayer requires leaving the building because the meeting is broadcast outside the council chambers for those who can’t find a seat or want to stay in the foyer. Who will tell those who have left the building when the prayer is over?

But the very suggestion that those not wanting to engage in a religious practice can leave the meeting is to acknowledge that the activity is religious activity, which should not be sponsored, promoted, or established by a government body under the Constitution.

I have never understood the mindset of public officials who believe that they have the right as elected officials to impose their religion and religious practices, or anyone’s religious practices, on the citizens by virtue of their public positions.

The author, editor, political commentator, and blogger Andrew Sullivan is a devout and ardent Roman Catholic. In a colloquy with atheist author and neuroscientist Sam Harris in 2007, they addressed the question of how a person of such strong belief as Sullivan can resist inflicting his religious beliefs on others. His answer is relevant to elected officials who assume the right to do this very thing to us all.

Sullivan responded to the question posed:

You ask legitimately: how can I, convinced of this truth (about Christianity), resist imposing it on others? The answer is: humility and doubt. I may believe these things, but I am aware that others may not; and I respect their own existential decision to believe something else. I respect their decision because I respect my own, and realize it is indescribable to those who have not directly experienced it.

That's why I am such a dogged defender of pluralism and secularism -- because I believe secularism alone does justice to the profundity of the claims of religion. The attempt to force or even rig laws to encourage others to share my faith defeats the point of my faith -- which is that it is both freely chosen and definitionally dealing with matters that cannot be subject to common consensus.

If public officials believe that religious worship is important, perhaps they should meet in a conference room before the meeting and pray together with their chosen clergy. Then, filled with righteousness from their religious worship, they can enter the meeting room in the frame of mind of their choice, gavel the meeting to order, and get on with doing the people’s business, without subjecting the people to forced religious worship.

In this way our elected officials can show respect for the pluralism of this society, the U.S. Constitution, and the conscience of every citizen.

The Bill of Rights became a part of our Constitution over 220 years ago. It is time that all of the First Amendment of that Constitution was followed. No one has a constitutional right to use the government to sponsor, promote, or establish religion; but everyone has the constitutional right to be free from government sponsorship, promotion, or establishment of religion.

It should not be too much to ask that this freedom be honored. That would be true religious liberty for all.

[Lamar W. Hankins, a former San Marcos, Texas, city attorney, is also a columnist for the San Marcos Mercury. This article © Freethought San Marcos, Lamar W. Hankins. Read more articles by Lamar W. Hankins on The Rag Blog.]

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Lamar W. Hankins : Texas Cheerleaders for Jesus

Kountze High School cheerleaders with banner at football game. Image from Atheist Camel.
Cheerleaders for Jesus:
Texas politicians jump
on religion bandwagon

Can cheerleaders who represent the Kountze Independent School District, while acting in their official capacities as school cheerleaders, promote their personal religious views?

By Lamar W. Hankins / The Rag Blog / October 24, 2012

SAN MARCOS, Texas -- It seems that it is still popular to beat up on atheists and agnostics in Texas, in spite of gains in acceptance of both groups. At least, politicians have found that they can stir emotions and benefit politically from standing up for God and Jesus, whether or not God and Jesus want their help.

Governor Rick Perry and Attorney General Greg Abbott recently jumped on the religion bandwagon yet again to denounce atheists and, by implication, their partners in non-belief -- agnostics, freethinkers, infidels, and secular humanists. Abbott directly attacked the Freedom From Religion Foundation (FFRF) as an organization from out of state.

While it is true that FFRF’s headquarters are in Wisconsin, FFRF has 700 members in Texas, including me. At its recent annual conference, there were members from 46 states in attendance. It is a national organization with affiliated groups in Texas and members from virtually every state.

The “outside agitator” description has been used forever to denounce anyone or any group that is not from the particular community where a controversy has arisen. In this case, the community involved is Kountze, Texas, located in Hardin County between Beaumont and Woodville, in the heart of what is known as the Big Thicket, an ecologically diverse and sensitive part of southeast Texas.

There is even a national park located there dedicated to preserving the unique natural environment of the area. Members of my family have lived in Hardin County for over 50 years, and I have done legal work there.

The current controversy in Kountze concerns a straight-forward constitutional question: Can cheerleaders who represent the Kountze Independent School District, while acting in their official capacities as school cheerleaders, promote their personal religious views?

Reasonable people might differ on their answer to this question (more about that later), but there is nothing reasonable about Perry and Abbott, both of whom have used religion to gain political advantage. On October 17, Perry and Abbott held a joint press conference to proclaim their undying support for Jesus and the Kountze cheerleaders’ right to press their religious beliefs on everyone attending football games while representing Kountze High School.

Gov. Rick Perry said, “We will not allow atheist groups from outside of the State of Texas to come into the state, to use menacing and misleading intimidation tactics, to try to bully schools to bow down at the altar of secular beliefs.”

Attorney General Abbott chimed in with, “After receiving a menacing letter from an organization with a reputation for bullying school districts, the Kountze [school superintendent] improperly prohibited high school cheerleaders from including religious messages on their game day banners.”

FFRF does not bully anyone. What it does is routinely send letters to governments after receiving a complaint about practices that violate the separation of religion and state, practices which are prohibited by the U.S. Constitution. In response to such a letter from FFRF, the Kountze ISD sought legal advice and concluded that because the cheerleaders were representing the school when they placed bible verses and religious messages on a banner prepared for the football team to burst through at the beginning of each school-sponsored game, the practice should stop.

The cheerleaders, through their parents, then sued the school district in state district court, represented by the Liberty Institute, a fundamentalist legal organization in Plano, Texas, that seeks to inject religion into government at all levels. FFRF is not involved in that law suit, but the group makes a handy whipping boy for political gain by Perry and Abbott. FFRF explained the issue this way:

The Constitution and FFRF are not "preventing freedom of expression," we are defending freedom of conscience. The Constitution differentiates government (public school) speech from individual speech. Those cheerleaders are free to worship as they like, go to the church of their choice, but not to exploit a public school event, and their school-sponsored podium, to push their personal religious views on an entire stadium. That’s just plain bad manners.

Dan Barker, co-president of FFRF, added,

Since the state’s top law enforcer, Attorney General Greg Abbott, and its highest executive officer, Gov. Rick Perry, have openly expressed contempt for atheists and the Establishment Clause, this leads to a climate of intolerance. It takes courage to face down the full apparatus of state government, but we need those brave few to contact FFRF. Don’t let collusion, politicking, and religious fervor in Texas destroy respect for keeping public schools free of religious divisiveness.

Most people seem not to understand that the Constitution is not a self-enforcing document. Unless there is someone willing to ask a judge to determine whether a constitutional violation has occurred, the violation will continue unabated, sometimes for decades or centuries. We had segregated schools until the mid-50s, when several parents stepped forward to contest the separate and unequal public educations afforded their children.

Unless someone is willing to challenge government practices, most politicians are too unprincipled to stand up for the Constitution and end unconstitutional practices, especially when those practices are popular with a vocal group. When it comes to government support of religious practices, fundamentalist and evangelical citizens make their voices heard, and politicians usually acquiesce to their vehemence and emotion.

The closest case to the Kountze cheerleader situation involves having public prayer at football games sponsored by the school district -- a government entity established by the state. The U.S. Supreme Court recognized the importance of preserving the secular nature of such high school functions in Santa Fe ISD v. Doe, 530 U.S. 290 (2000).

Santa Fe ISD is a school district near Houston. The school had a policy of electing a Santa Fe High School student to serve as student council chaplain, who would deliver a Christian prayer over the public address system at the beginning of home football games. As explained by FFRF,

One Mormon and one Catholic family filed suit challenging this and related practices as violations of the Establishment Clause, because the policy clearly favored the predominant Protestant viewpoint to the effective exclusion of non-evangelical students and audience members.

Justice John Paul Stevens wrote the majority opinion in Santa Fe ISD, which held that student-led, student-initiated prayer at school events violates the Establishment Clause. The school had claimed that the prayers were a student choice, and that attendance at an extracurricular event like a football game is voluntary. The Court found this rationalization unpersuasive because the prayers were authorized by the public school and took place on public school property at a school-sponsored event.

These salient facts lead a reasonable person to conclude that the school endorses the message of the students, making the students' remarks public speech, not private religious expressions. Proponents of student-led prayer believe that students should have to choose between attending school functions or not attending to avoid school-sponsored prayer. The Supreme Court disagreed, writing,

The Constitution, moreover, demands that the school may not force this difficult choice upon these students for it is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice.

An earlier U.S. Supreme Court case in 1992 affirmed nearly four decades of court precedent against school prayers. In Lee v. Weisman, 505 U.S. 577, the court held that prayers at public school graduations are an impermissible establishment of religion. Justice Anthony Kennedy wrote for the majority, "if citizens are subjected to state-sponsored religious exercises, the State disavows its own duty to guard and respect that sphere of inviolable conscience and belief which is the mark of a free people."

While neither of these cases is exactly like the Kountze situation, they raise such similar issues and arise from such similar facts that it is logical to conclude that they control the behavior of the Kountze cheerleaders when they act in an official capacity on behalf of the Kountze ISD. Attorney General Abbott has not explained why these cases should not apply to the Kountze controversy, but he jumped at the chance to intervene officially in the case.

FFRF has noted these two cases, as well as six others that seem to provide adequate precedent to conclude that what the Kountze cheerleaders are doing violates the rights of other students. They include cases concerning prayer at high school graduations, prayer in public schools, devotional Bible-reading in public schools, and pre-football game invocations at public high school football games.

Clearly, the U.S. Supreme Court and lower courts have concluded that public schools have a legal duty to remain neutral toward religion. If the Kountze ISD allows official school representatives -- the cheerleaders in this case -- to promote religion through the display of signs that include both Bible verses and religious admonitions much like prayers, the Kountze ISD fears that it will be seen as promoting religion. For now, the state district court has ruled that the religious banners can continue. A trial on the issue is set for next summer.

For those people who want government to promote religion, court interventions are a hindrance to their theocratic ambitions. But there is no excuse for the Governor and the Attorney General of Texas to play politics with government promotion of religion. They know what the federal courts have held, but they choose to ignore the holdings -- a sort of modern day interposition and nullification intended to undermine the U.S. Constitution, which both have sworn to uphold.

[Lamar W. Hankins, a former San Marcos, Texas, city attorney, is also a columnist for the San Marcos Mercury. This article © Freethought San Marcos, Lamar W. Hankins. Read more articles by Lamar W. Hankins on The Rag Blog.]

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Richard Raznikov : Battlefield America

"Dissent is terrorism." Art by Anthony Freda / Activist Post.
Battlefield America:
'We had to make some sacrifices...'

There are no more legal barriers to arrest without warrants, prison without lawyers, condemnation and even execution without trial.

By Richard Raznikov / The Rag Blog / March 8, 2012

There was a declaration in the Congress during the passage of the National Defense Authorization Act, to the effect that in the "war on terror" the United States was a part of the field of battle.

This statement was made by Senator Lindsey Graham, among others. It was consequent to the continuing fantasy that we now live in a "post-9-11 world" which, presumptively, means that the laws which have protected Americans from their government for 200 years no longer apply.

Sorry about your freedom, but we had to make some sacrifices to keep you free.

Because of 9-11, we were told, we needed the grotesquely-named "Patriot Act" which took large pieces out of the Bill of Rights. In order to be safe from the "enemy" we had to give up the Constitution. The Patriot Act was passed as emergency legislation with no debate. The senators and representatives who voted for it did not read it. For that alone, they deserve impeachment and removal from office.

But betraying the country is no longer a crime when it’s done by the government.

It seemed at the time like an odd construction, the insistence that America’s own turf was now a part of the battlefield, but that’s what Graham and others insisted.

There were reasons for this.

For one thing, as the NDAA legislation makes clear, the protection afforded Americans from the use of the army against us, the so-called Posse Comitatus Act, has effectively been nullified. Last month, the army conducted "exercises" with Homeland Security operatives and the L.A. police force in a section of downtown Los Angeles.

For another, by calling the United States part of the battlefield, the president, any president, can direct the army to arrest and detain without trial any citizen "suspected" of actions in "support" of an "enemy." The person imprisoned with no rights, in violation of the most fundamental clauses of the Constitution, can’t get judicial review and may never be released because the "war" against "terror" is a war which will by definition never end.

Pretty neat trick, huh?

Last time I looked, only fascist countries and totalitarian regimes did these sort of things. I must’ve been mistaken.

A week ago, in testimony before the Senate Judiciary Committee, Steven G. Bradbury, former acting assistant Attorney General, principal deputy for the Office of Legal Counsel, and one of the authors of the infamous Bush "torture memos," told Senators that an amendment to the NDAA which would exempt American citizens from indefinite detention without charge or trial would be a mistake.

...the evident purpose of the legislation is to prevent the President from detaining as an enemy combatant under the laws of war, without criminal charge, any American citizen or lawful permanent resident of the United States who is apprehended in this country, even if the person is captured while acting as part of a foreign enemy force engaged in acts of war against the United States, such as a U.S.-based terrorist recruit of al Qaeda acting to carry out an armed attack within our borders...

Bradbury believes such a limit would hamper the President in waging the war against terror. America’s a battlefield, he believes, echoing the words of Graham and Chuck Grassley, the senator who brought him in to testify, and that means that anyone on the side of the "enemy" should not be able to count on the protection of the Bill of Rights.

According to an article on the hearing by Kevin Gosztola in Firedoglake, Graham, who was present, "contended the 'homeland' was part of the battlefield and reading Miranda rights is not the best way to collect intelligence. He firmly asserted that homegrown terrorism could be a problem and he wanted the legal system to recognize 'the difference between fighting a crime and fighting a war.'"

No, reading a suspect ‘Miranda rights’ was never the best way to get a confession, either. A rubber hose or simple, repetitive beatings, or simulated drownings, for that matter, could get people to confess to anything just to make it stop. The use of torture, which Obama claimed to oppose but which his administration continues to authorize, is good only for the purpose of satisfying the perverse, sadistic interests of the torturers; nobody in law enforcement thinks it extracts much truth.

Bradbury testified that since President Obama believes he has the authority to order the killing of American citizens in other countries -- such as the victims of U.S. targeted drones in Yemen -- it doesn’t make sense that such a target could become entitled to constitutional rights simply by “making it to the homeland.”

See where this is going?

If the "war" against "terror" is fought everywhere on earth, and if Americans can be legally killed by order of the President on foreign soil, then the President can order the killing of American citizens anywhere, including the United States.

Attorney General Eric Holder. Image from MSNBC.
That was the point of Lindsey Graham’s continued harping on the "battlefield" terms; that was the point of the NDAA and its lightning-swift passage through a somnolent and hopelessly corrupt Congress which barely raised any questions. If America is part of the battlefield, whatever may be legally done on a battlefield may be done here, right here, maybe in L.A. or Oakland, or wherever you live.

True, the use of drone attacks might have to be minimized; too much political fallout from killing a bunch of neighbors along with the "enemy" suspect.

A year ago, the idea that the President had initiated use of death lists, lists of people who were to be killed by the CIA, was considered fanciful or paranoid. Such a claim in the New Yorker by Pulitzer Prize winner Sy Hersh, drew little public response and no Congressional outcry. Now, it’s a conceded fact. And still very few object.

Now, Attorney General Holder, obviously speaking for Obama, tells Congress that the President has the right to order the assassination of whomever he wants. And if America’s now in a permanent state of war, and if that war is taking place right here, in the Fatherland, then there is nothing to prevent Obama -- or any future president -- from killing people, or simply letting the army do it.

That is the situation. It’s not exaggerated. Right now, the U.S. uses death lists. Right now, people are targeted for assassination not because of what anyone’s proven them to do but because of what they are said to have done, or even are said to be thinking of doing.

Obama and Holder are telling us that in plain English. Right now, with the Patriot Act and NDAA, the U.S. is considered part of the "battlefield," which means that the army may do to anyone suspected of wrongful behavior, or of planning such behavior, whatever it wishes. That gives the formerly proscribed act known as prior restraint a whole new meaning.

There are no more legal barriers to arrest without warrants, prison without lawyers, condemnation and even execution without trial. It is a situation so antithetical to what America has by law always been that it is beyond belief. Yet it is so.

Here’s Holder again:

Now, let me be clear. An operation using lethal force in a foreign country targeted against a U.S. citizen who is a senior operational leader of al-Qaeda or associated forces and who is actively engaged in planning to kill Americans would be lawful at least in the following circumstances: first, the U.S. government has determined after a thorough and careful review that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.

The government “has determined.” “Careful review.” “Capture is not feasible.”

And this:

Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al-Qaeda or associated forces. This is simply not accurate. Due process and judicial process are not one and the same, particularly when it comes to national security. The Constitution guarantees due process. It does not guarantee judicial process.

If due process under the American system, under the Bill of Rights, does not consist of judicial process, of what does it consist? For Holder and Obama, it consists of their own judgment. Don’t worry. Your government will not mistreat you.

Holder:

Some have called such operations "assassinations." They are not. And the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons that I have given, the U.S. government’s use of lethal force in self-defense against a leader of al-Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful, and therefore would not violate the executive order banning assassination or criminal statutes.

“Self-defense” against someone who has yet done nothing but who “presents an imminent threat” as determined by, well, by the government.

And Barack Obama, on the heels of drone attacks which have specifically targeted not only individuals, such as the 16-year-old son of Anwar al-Awlaki, but funeral processions and first responders, such as medical teams, had this to say:

I want to make sure that people understand, actually, drones have not caused a huge number of civilian casualties. For the most part, they have been very precise precision strikes against al-Qaeda and their affiliates. And we are very careful in terms of how it’s been applied.

So, I think that there’s this perception somehow that we’re just sending in a whole bunch of strikes willy-nilly. This is a targeted, focused effort at people who are on a list of active terrorists who are trying to go in and harm Americans, hit American facilities, American bases, and so on. It is important for everybody to understand that this thing is kept on a very tight leash.

People who have not attacked America but who “are trying to go in and harm Americans” based on the secret information that we have. The President wants people to understand.

I understand, all right. Here’s Hina Shamsi, an ACLU lawyer, on Democracy Now!:

President Obama has used more targeted killings than the Bush administration ever did. And we do not have the memos, the Office of Legal Counsel memos, that justify the targeted killing policy. And so, very disappointingly, we see the administration claiming a broad and dangerous authority without adequate public transparency, disclosure, and refusing to defend its authority in the courts.

We do not get to see the memos, the memos that "justify" murdering, that is using "lethal force" against Americans, drafted by a government agency. Thanks for the transparency, Mr. President, that you promised. But don’t worry, we trust you. You would never lie to us. You would never violate the constitution. You want to make sure that people understand.

I understand, all right, and so do plenty of other people. This Constitution means something to us, brother, and we're not giving it up just yet.

[Rag Blog contributor Richard Raznikov is an attorney practicing in San Rafael, California. He blogs at News from a Parallel World. Find more articles by Richard Raznikov on The Rag Blog.]

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Lamar W. Hankins : Killing of Anwar al-Awlaki is Assault on the Constitution

Genghis Khan (R-Mongolia). How much progress have we made? Image from the genghis kahn.

An assault on the Constitution:
The killing of Anwar al-Awlaki

It is hard to see that we have made much progress beyond the world of Genghis Khan nine centuries ago.

By Lamar W. Hankins / The Rag Blog / October 4, 2011

If the killing of Anwar al-Awlaki (along with several other people in Yemen on September 30 by two air strikes from U.S. Predator drones) does not at least trouble you, there is probably no reason to read this essay.

I am searching for a rational explanation for al-Awlaki’s killing that will satisfy the values with which I grew up -- values based on America’s laudable conduct dealing with Nazi war criminals after World War II and with the U.S. Constitution that I learned about in law school.

I’ve read the glib assurance from Robert M. Chesney, a law professor at the University of Texas who specializes in national security law, that he believes the killings were legal. His opinion is not comforting. The opinions of law professors and legal advisers are purchased, either literally or figuratively, as easily as are the opinions of a barber.

The Constitution seems to mean whatever any Humpty Dumpty legal scholar wants it to mean. (“When I use a word, it means just what I choose it to mean -- neither more nor less.” -- Humpty Dumpty in Through the Looking Glass.)

What we do know with reasonable certainty is that Obama Administration officials have confirmed that the Yemeni-American Islamic cleric Anwar al-Awlaki was killed by the U.S. government. The administration claims that al-Awlaki was a terrorist, though no evidence has been presented to prove that claim.

We do know that he was a U.S. citizen, born in New Mexico. As a citizen, al-Awlaki was entitled to the rights afforded by the First Amendment to the U.S. Constitution, which protects his right to abhorrent opinions. His apparent delight in the Ft. Hood killings two years ago expressed in email correspondence with the Major accused of those slayings makes al-Awlaki a terrorist sympathizer at the least. But that does not negate his citizenship, nor his rights to the protections of the Fifth and Sixth Amendments to the U.S. Constitution.

The Fifth Amendment provides:

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 offence 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.

The exception found in the Fifth Amendment as quoted might be used to justify the killing of al-Awlaki if we assume that he was chargeable with a capital or infamous crime, but without such a formal charge, the exception applies only “in a time of War.”

We are not at war in Yemen, where al-Awlaki was living and working before he was killed. We have been presented with no evidence that al-Awlaki was creating a public danger, but if he were, he was not engaged in “actual service” in a military so far as anyone has claimed. And the U.S. government has not made any claim that his killing falls within an exception found in the Fifth Amendment.

In fact, the Administration seems to think it owes no explanation at all.

What our government was permitted to do under our system was to have al-Awlaki indicted for any alleged crimes he might have committed. The government chose not to do so. Had it done so, al-Awlaki, as a U.S. citizen, would have been entitled to the protections of the Sixth Amendment, which provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

An effort was made by al-Awlaki’s father to prevent al-Awlaki’s killing after it became known a short while ago that al-Awlaki was on a U.S. government list of terrorists targeted to be killed or captured. This past summer, a federal court, based on procedural grounds, would not allow the father’s case to go forward.

In our post-9/11 world, not even the courts will protect citizens from being summarily executed by the government. Previously, the authority to kill American citizens has been restricted to clearly defined geographical boundaries of military conflict at a time when the U.S. was at war with a clearly identified enemy. This was not the case with al-Awlaki.

Glenn Greenwald, who is a constitutional law attorney and legal writer for several publications, had this to say about the killing of al-Awlaki:

Anwar al-Awlaki is a U.S. citizen. He was ordered assassinated by the President of the United States without presenting any evidence of any kind as to his guilt, without attempting to indict him in any way or comply with any of the requirements of the Constitution that say that you can’t deprive someone of life without due process of law.

The president ordered him killed wherever he was found, including far away from a battlefield, no matter what it was he was doing at the time. And if you’re somebody who believes that the president of the United States has the power to order your fellow citizens murdered, assassinated, killed without even a shred of due process, without having to have charged him with a crime or indict him and prove in a court he’s actually guilty, then you’re really declaring yourself to be as pure of an authoritarian as it gets.

To emphasize the extraordinary action of our government in killing al-Awlaki, Greenwald continued:

Remember that there was great controversy that George Bush asserted the power simply to detain American citizens without due process or simply to eavesdrop on their conversations without warrants. Here you have something much more severe. Not eavesdropping on American citizens, not detaining them without due process, but killing them without due process, and yet many Democrats and progressives, because it’s President Obama doing it, have no problem with it and are even in favor of it.

To say that the President has the right to kill citizens without due process is really to take the Constitution and to tear it up into as many little pieces as you can and then burn it and step on it.

Greenwald put the whole matter in even more stark relief when he said,

The problem is that American political culture is such that evidence doesn’t make a difference. Trials and due process are very pre-9/11. What we believe is that if the president stands up and says someone is a terrorist, that’s all we need to know; (he is) therefore guilty because the leader has accused him of being that, and as long as the Aides then go and leak to the media, which they have done, that he played a significant operational role and was a big Al Qaeda leader, we won’t need to see evidence. We’ll just stand up and blindly click our heels and accept it’s true, and then cheer the fact he’s been murdered based on unproven claims.

It is well-known that al-Awlaki was a fierce critic of U.S. policy in the Middle East. Of course, as a U.S. citizen, he had First amendment rights to speak his mind about U.S. policy. If anything he said could have been construed as treason, once again, he could have been indicted for such alleged treason, rather than being summarily executed.

But after the recent spectacles of Americans (all apparently Republicans) cheering the death of a medically uninsured man who “chose” not to have health insurance or could not afford it, cheering the execution of people who may have been innocent of any capital crime, and booing a gay serviceman who spoke out about an end to the “don’t ask, don’t tell” policy in the military, I don’t expect many Americans of either political party to be concerned about the extra-judicial killing of al-Awlaki and his unnamed companions.

Since 9/11, Americans have largely acquiesced in the curtailment of their constitutional rights with minimal push-back against the government. But with this action, President Obama has doubled down on the corruption of American values destroyed by the Bush-Cheney band of rogues.

The only just remedy for what Barack Obama has done is for impeachment charges to be introduced in the House of Representatives. If ever there was a high crime, killing an American citizen without even a veneer of due process is such an offense warranting impeachment.

That may be the only way for the American people to learn the whole truth about this reprehensible action of a U.S. president. If evidence of a stain on a dress was grounds for impeachment in 1998, evidence of a stain on the Constitution should be even more compelling grounds in 2011.

But impeachment will not be discussed because the House of Representatives is controlled by the Republicans once again and the Republican leadership, as much as or more than the Democratic leadership, favors an American government that can engage in such extrajudicial murder. It shows that we are strong and beyond the control of any law or treaty. It also appeals to the macho mentality of American culture.

Our constitutional system is failing, and that failure started long before 9/11, as we engaged in illegal and covert military actions wherever we pleased. Perhaps it has failed already to the point that it cannot be renewed or rejuvenated. If our civilization rests on such dishonoring of our constitutional foundation, the sooner we can be done with it and start anew, the better the world will be for it. It is hard to see that we have made much progress beyond the world of Genghis Khan nine centuries ago.

My greatest regret as I near the end of my life is that my generation and those that have followed have left such a dismal future for my granddaughter and the other children of our youngest generation. I fear that these children will live on a far worse “Desolation Row” than the one imagined by the songwriter.

When Americans refuse to stand up for what is right, and just, and moral, the decay of American civilization will produce a stench worse than any other cesspool known to humankind. Already it is not good to breathe too deeply.

[Lamar W. Hankins, a former San Marcos, Texas, city attorney, is also a columnist for the San Marcos Mercury. This article © Freethought San Marcos, Lamar W. Hankins. Read more articles by Lamar W. Hankins on The Rag Blog.]

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Sherman DeBrosse : The Historical Fiction of 'Conservative Constitutionalism'

Photo by Chip Somodevilla / Getty Images.
Historical fiction:
Understanding 'Conservative Constitutionalism'

The Tea Bag wing of the Republican Party has a constitutional philosophy that essentially spits in the face of decades of settled law.

By Sherman DeBrosse / The Rag Blog / December 7, 2010

Recently, Lincoln Caplan wrote on the The New York Times editorial page that we need to get a handle on what “constitutional conservatism” means. The term is used by the Tea Baggers, Speaker-designate John Boehner, and many others. Eight out of 10 Republican voters said they wanted to return government to the Constitution.

It is an effective rallying cry because we all want to honor the Constitution, our sacred document. Americans have always called things they did not like “unconstitutional.” The growing popularity of so-called conservative constitutionalism is worrisome because the courts do have a way of following election returns, and much of what the constitutional conservatives advocate is anything but in line with accepted interpretations of the Constitution of the United States.

The problem is that what the Tea Bag conservatives are saying about our constitution betrays, in the words of historian Fritz Stern, nothing less than “stupefying ignorance.”

In November 2009 the Hoover Institution published a paper using the term constitutional conservatism, by which it meant the policies of Ronald Reagan. The document added that it “teaches the indisputableness of moderation” and a reverence for “order.”

That definition leaves out the way the term was used in the 2010 elections. Last winter, 80 conservative thinkers put out the Mount Vernon Statement, which was an attempt to update William Buckley Jr.’s 1960 manifesto to fit the term “constitutional conservatism.” The document was little more than an anti-Obama polemic and laid out no constitutional doctrine.

Going back a bit in history, two legal scholars used the term: William Rehnquist and Robert Bork. Both encouraged Ronald Reagan to defend South African apartheid. That, of course, has nothing to do with U.S. constitutional law, but it reflects an outlook. Rehnquist opposed the Brown v. School Board of Topeka, Kansas decision.

Of course, conservative constitutionalism means support for limited government, individual freedom, and opposition to big government. Everyone who employs the term can agree on those points. Those who used the term in 2010 also use Conservative Constitutionalism to support their insistence that society should not be using public money to help the vulnerable and victims of misfortune. It is a legal doctrine intended to support the policies of Social Darwinism and moral indifference.

Tea Baggers and right-wing Republicans have a lot to say about the constitution, often display it, and think they are experts in interpreting it. The parts of the Constitution they do not discuss are the Supremacy Clause, the Commerce Clause, or the words about “We the People,” wanting to “form a more perfect union,” and providing for the “general welfare.”

Right-wing Republicans are united by an intense resentment of government and authority, and this strain of right-wing anarchism often includes talk about using arms against the government. Some insist that the income tax and unemployment assistance are unconstitutional. Tea Baggers want to repeal the Sixteenth Amendment, passed in 1913, which authorizes the income tax.

Tea Baggers cite the Constitution as their reason for wanting to close down the Department of Education. For the most part, they make pronouncement about the law, but they refrain from explaining their views in depth or disposing of standing constitutional interpretations and doctrine which has been in place for decades.

The Tea Bag wing of the Republican Party has a constitutional philosophy that essentially spits in the face of decades of settled law. It is based upon the discredited legal theories that led the South to leave the federal union. They are “Tenthers,” relying on the Tenth Amendment to assert state sovereignty and the right of states to leave the union. Their goal is to establish the supremacy of the states.

Their quarrel is with the Supremacy Clause of the U.S. Constitution and all the constitutional law that defines it, and they usually do not reference it directly. Instead, they mount many arguments that would lead the listener to believe that the founders could never have envisioned the Supremacy Clause.

Much of the theoretical spadework was done for them by the Constitutionalist Party, a far-right group that has been around for quite a while. It is allied with white supremacists, Christian Restorationists, militias, and Christian Identity.

Todd Palin was active in the Alaskan Independence Party.
In Alaska, there is a very similar movement, the Alaska Independence Party, which seeks independence and has a large following. Todd Palin was a member, and Governor Sarah Palin attended its gatherings and spoke to its convention. The party’s founder blew himself up by playing around with a bomb. The size of the Alaska Independence Party should have prepared us for the mushrooming of a similar movement on the national scene.

Militias were in sharp decline in the late 1990s, but the presence of an African American with an Islamic middle name in the White House changed all that. Now, these fringe groups are experiencing phenomenal growth, and sales of weapons and ammunition have skyrocketed. President Barack Obama’s presence in the Oval Office galvanized the members of right-wing fringe groups, and they became leaders of the Tea Bag movement. Many dormant extremists were also activated.

Many of these people talk about violent acts against government, but within the fringe groups it is known that only a few are likely to act -- the “three percenters.” One of these people was James Von Brunn, who killed a guard at a D.C. museum and was subsequently shot. His target was chief-of staff David Axelrod. Brunn believed that “Obama was created by the Jews,” so he schemed to go after Axelrod. James Cummings assembled a dirty radioactive bomb in hopes of killing President Obama but perished when his wife shot him in a domestic dispute.

Tenthers are claiming that the federal government has only the powers specifically approved in the Constitution. Using only information about our founders’ intentions, they make a fairly strong case. The problem is that over time historical events and court decisions have discredited their views. A vast body of constitutional law has developed which repudiates their views.

The wonder is that so many Republican politicians trained as lawyers can spout these archaic theories. They must know that these views will never fly -- even in the extremely conservative Roberts Court. The non-lawyers among them attended college or high school and may have even been required to memorize some of the famous speeches on the other side of the issues. It is all rank demagoguery; but the American people have a way of forgiving almost anything that comes from the Right.

Members of the Tea Bag wing of the Republican Party say the Tenth Amendment gives the states all power not explicitly given to Congress or denied to the states. Based on this, the Tea Baggers claim that Medicare and Social Security are unconstitutional. Some, using a video about the history of the Sixteenth Amendment, also say that the income tax is unconstitutional.

Ken Buck, the Republican nominee for the United States Senate in Colorado, is a strong advocate of Tenther views and calls it “constitutionalism.” He says that because the constitution does not refer to health insurance and retirement benefits there should be no Medicare or Social Security.

He is a very consistent Tea Bagger, but many others are practical enough to avoid following their philosophy to its logical consequences. They can be expected to attempt to trim both Medicare and Social Security. In addition, many want to let state legislatures elect U.S. Senators, and they want to give the states much more authority in civil rights matters.

A favorite Tea Bagger remedy is the long-discredited doctrine of nullification. It is the idea that a state can prevent a federal law from being enforced within its boundaries. This idea was promoted long before the Civil War by John C. Calhoun of South Carolina. It is an essential part of the package of legal doctrines based on the Tenth Amendment which promote the supremacy of the states.

In Missouri, 71% of the voters supported a ballot proposition that declared null and void the federal health care law. The proposition was engineered by Roy Blunt, the Republican nominee for the U.S. Senate. In Arizona, voters in November will vote on a constitutional amendment designed to nullify federal health care reform. Legislatures in 17 states are considering laws to nullify federal health care.

Minnesota gubernatorial candidate Tom Emmer with family.Photo by Jim Mone / AP.
In Minnesota, Tom Emmer, Republican nominee for governor, thinks federal laws should not be enforced in a state unless a supermajority of the legislature decides to approve it. In Virginia, Tea Baggers want the legislature to pass the Freedom for Virginia Act, which would permit the state to invalidate any federal law it dislikes.

Tenther philosophy leads inexorably to support for secession. If federal power were granted by the states, the states could take it away or even leave the federal union. Of course, the constitution says the power comes from “We the People,” not the individual states.

Republican pundit Joe Klein recently voiced an opinion that almost no other Republican would even approach: Rush Limbaugh, some Fox commentators, and some Tea Baggers have come very close to sedition -- that is provoking people to violence against the state. The Republican candidate for the 9th district of Ohio (Toledo), turned out to be a person who enjoys playing the role of an SS officer in World War II reenactments. Hand in hand with a tendency toward violence is the advocacy of secession.

Sharron Angle, who well could eventually become a U.S. Senator from Nevada, talks about the citizens “looking toward the Second Amendment option” if they cannot get power through use of the ballot box. Michael Gerson, a conservative writer said “This is disqualifying for public office.” Klein and Gerson seem to be almost alone among Republicans in condemning these views held by a substantial list of Republican leaders who should be disqualified.

Pastor Stan Craig, of the Choice Hills Baptist Church in South Carolina, proclaimed that he "was trained to defend the liberties of this nation." He declared that he was prepared to "suit up, get my gun, go to Washington, and do what they trained me to do."

At the Texas Tea Party Convention in February 2010, former Governor Sarah Palin mentioned but did not advocate “Texas secession,” but there was a huge cheer when she mentioned it. Texas Governor Rick Perry has spoken as though secession were possible. Representative Zack Wamp, who sought the GOP nomination for governor of Tennessee, says that Volunteer state might have to secede from the union if health care were not repealed.

Standing outside the Capitol, Representative Stephen King of Iowa urged fellow Tea Baggers to “think secession.” The North Carolina Tea Bag Party promotes secession as a means of combating Washington’s “tyranny.” In Oklahoma, Tea Bag Republican legislators are planning to establish a militia separate from the National Guard to protect state sovereignty against incursions by the federal government. They have not used the “S” word, but it does come to mind when people talk about taking up arms against Washington.

Glenn Beck has been a little more circumspect about secession, saying the Tea Party might eventually “ be about secession” if it does not get its way.

In the last analysis, conservative constitutionalism is not about honoring the Constitution of the United States; it is about having things the way the far right wants them. Representative Bob Bishop of Utah is backing what is called the Repeal Amendment, which would permit 33 states to repeal pieces of federal legislation.

It is not quite the same thing as nullification, since more than one state must act. But it violates a number of basic constitutional principles, and provides a way to get around the will of a numerical majority of the citizenry. Theoretically, the 33 smallest states could impose their will on the remaining states that constitute the bulk of our population. The amendment has strong support in Virginia and is backed by the man who now represents James Madison’s district.

Eric Cantor, the new majority leader in the House, is leading an effort to seriously modify Madison’s legislative mechanism. Constitutional conservatism is not about reverence for the Constitution.

Byron Williams, who was upset with Congress' "left wing agenda," with his inspiration, Glenn Beck. Image from TVNewsLies.
The talk about secession and armed resistance is dangerous in part because talk about resorting to violence can inspire acts of violence. Recently, Byron Williams, inflamed by what he heard from Glenn Beck and Fox News, took up arms, and ended up in a gunfight on a freeway where he was injured in a gun fight with police. He said he was upset by Congress’s “left-wing agenda” and that he planned to kill some liberals at a local foundation that Glenn Beck had denounced.

Beck frequently alludes to violence and insists that the government is being taken over through an insiders coup. Rush Limbaugh also talks about a coup from within. He talks about a “nefarious cabal” out to “destroy democracy in America.” Beck and Limbaugh are not the only shock jocks playing the Rawanda Radio game, and even some of the rhetoric of Newt Gingrich could be taken as a not-so-subtle endorsement of violence.

These people irresponsibly pour petrol on dangerous fires, and their colleagues in the Republican Party do nothing to rein them in. Why anyone would vote for a party that threatened secession, nullification, and sedition and uses such inflammatory language is a mystery. But a large number of Americans seem determined to support these Fire-Eaters.

On some matters, the Tea Baggers and their colleagues in the Republican Party take positions that border on lawlessness. For some months Republicans have been busy trying to find ways for the states to renege on their pension promises to exiting employees and former employees. At the Congressional level, Republican leaders -- from Speaker-in-waiting John Boehner and Eric Cantor on down -- have discussed the need to trim federal pensions. Boehner even flirted with the idea of trimming military pensions; that, of course, is unthinkable.

At the federal level, they would have to find a way of getting around the contract clause. Most state constitutions also have contract clauses. Governor Arnold Schwarzenegger has insisted that the pensions of California employees now working and those already retired should be slashed. Three states have initiated slight pension reductions, and there are challenges in the courts.

In the last analysis, the law is what the judges say it is, and state judges are likely to rule in favor of angry taxpayers who do not want to stand behind promises made to employees as part employment contracts. Those workers are being demonized now by Republicans and Tea Baggers, and they stand little chance of holding on to all their pension rights. There was a time when “conservative” meant someone who upheld standing law and the right of contract.

In Bush v. Gore, the five “conservative” justices of the Supreme Court made new law and embarked on the course of judicial activism that has vastly widened the political power and economic right of corporations and has made it more difficult to launch class action cases. And they tried to make it more difficult for women to enforce their rights to equal pay.

In the previous Republican controlled Congresses, we saw gross violations of the rules with very long vote counts, Democrats regularly barred from committee meetings, and blatant abuse of subpoena powers. Conservatism was infected with a lawless temperament.

It is very troubling that people in the mainstream media do not explore these views at length. Much of their thought is very similar to that of Timothy McVeigh. The people who allegedly helped James Earl Ray were also of this stripe.

For the moment, Republicans seem successful in uniting behind the rallying cry of “conservative constitutionalism.” However, if the public were to come to understand what the Tea Baggers mean by the term, at least a few Republicans might find it necessary to back away from secession, taking up arms against the government, and repealing the Sixteenth Amendment.

There is much we do not understand about these troubled peopl who espouse odd constitutional interpretations and oppose “big government” in some respects while silently backing “big government” in other ways. Very few of them object to endless wars or massive amounts being spent on the military-industrial complex. Here, their extreme nationalism is closely tied to xenophobia, racism, and dislike of “others” in general.

For right-wing men, the “other” clearly includes feminists and women who demand reproductive freedom and equal pay. Some of us have not forgotten that Republicans last year fought tooth and nail to preserve unequal pay.

All this is consistent with what we know about the authoritarian personality and people who need the guidance of strong authority figures. Even though they oppose the existing government, the Tea Baggers present many characteristics of authoritarians. Though they only represent perhaps 40% of Republicans, the problem is that their outlook spills over to others and has a way of growing. The widespread disgust with government helps the Tea Baggers, who offer a justification for intense hatred of the existing government.

Tea Baggers replace reverence for government with what has been called “constitution worship,” in which they conflate the civil and the sacred. Perhaps because the United States lacks a state religion, these people need to see something else as sacred. It is “divine guidance” thinking of a sort which requires unswerving devotion to particular interpretations of the constitutions, few of which are accurate or linked to mainstream constitutional thought.

[Sherman DeBrosse is a retired history professor. He also blogs at Sherm Says and on DailyKos.]

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