I think that everyone here knows that just because David B says “This is unconstitutional” it is akin to the protestor above.
So, instead of battling the semantics (which is what we were doing, since I don’t think anyone here is ready to give Dave a vote on the Supreme Court quite yet), how about giving your opinion on whether it ought to be constitutional or not and why, huh?
Yer pal,
Satan
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Is there a special way you register when you get to speak for everyone here? Because unless there is, I don’t think you do. Moreover, if your problem with my post was that it was an unnecessary clarification of something self-evident, you could have said so several number of posts back.
The obvious answer is that I’ve already done so, in exhaustive detail, in the thread that we already did. I wish there was a way to pull it out of the !@#$%^& archives, but apparently there isn’t. But I guess I don’t mind summarizing. I agree with the courts’ interpretation that IGWT, at least as used on money, serves a secular purpose and has a primary function other than the advancement of religion. Ergo, it is constitutional. The cases setting forth the reasoning (which I assume you’d also be interested in) are: Gaylor v. United States, 74 F.3d 214 (10th Cir. 1996); O’Hair v. Murray, 588 F.2d 1144 (5th Cir. 1979), cert. denied 442 U.S. 930 (1979); and Aronow v. United States, 432 F.2d 242 (9th Cir. 1970). You can probably find them on the Web. Without getting into the meat of the decisions, I would also point out two things: (1) the latest of them upheld the constitutionality no later than four years ago, and in the meantime society has hardly undergone a radical shift indicating the reasoning would not be equally relied upon today; and (2) the Supreme Court had the opportunity to review the constitutionality of IGWT in the O’Hair case but denied cert, thereby strongly implying that the underlying decision (finding IGWT constitutional) was not erroneous.
We went over this in great detail last time this came up, and I have no interest in doing so again. So let me summarize my position.
When I say, “This is unconstitutional,” I am not speaking as a lawyer. I am speaking of it as an issue of fact – although in this case that “fact” is my opinion.
For example, if I say, “O.J. is a murderer,” we all know that the court found him not guilty of murder. So, legally, we are incorrect. But there is still an issue of fact. Either O.J. did commit murder, or he did not. This is completely independent of the jury’s finding.
Similarly, IGWT is either Constitutional or unConstitutional, as a matter of fact. It is my opinion that that fact is that IGWT is unConstitutional, regardless of what the courts may have said on the subject.
Obviously, typing this all out every time I want to say something about IGWT is ridiculous. And pretty much everybody here understood exactly what I was saying. Nobody thought that I was “setting forth some proven fact or established point of law.”
So, in the future, when you see me say X “is unConstitutional,” please mentally insert the proper words above. If I want to specifically say that something has been found to be unConstitutional, I will be more explicit about it.
Oh, and, once again, I don’t see how anybody could claim with a straight face (yes, even a court) that a phrase about trusting in God serves “a secular purpose.”
This was how the court claimed the motto passed the Lemon Test. They also reviewed whether it passed a more recent test used by the U.S. Supreme Court, called the Endorsement Test. This paragraph farther down in Gaylor v. United States, which in turn cites the Supreme Court’s 1995 Capitol Square case, is particularly telling:
In other words, it sounds like the court does not see the Establishment Clause as protecting the rights of the minority from a tyrrany of the majority. If the “average” person does not see “In God we Trust” as endorsing religion, then by golly, that’s good enough to allow it to remain our national motto. :rolleyes:
We did, which I hope underscores that I’m really not picking on you, personally; I object to it now for the same reasons I objected to it then.
And here I’ll be accused of nit-picking again but oh well. David, surely you can appreciate the difference between “opinion” and “fact.” You want to equate your “opinion” with being a “fact” and that’s the precise problem – it’s not a fact, it’s just your opinion. But you state it so firmly and without any context indicating it is merely your opinion. I continue to think that is misleading, intentional or not. If some one posts a question that says “Is smoking marijuana legal?” and I post, a reply that reads, in its entirety “Yes, smoking marijuana is legal,” I don’t think I can then defend myself by saying, “Well, that’s just my opinion –I think it’s legal” because there’s no indication it is “just my opinion.” Same problem here.
First, whether or not someone commits a concrete crime, like murder, may often be a question of fact, provable by recourse to the physical word and testimony of acts that actually occurred. (The defendant was at the 7-11 at 10 p.m.; the defendant was observed shooting the victim; the gun was found in the defendant’s car.) All these facts are provable or disprovable – which, when you think about it, ever true “fact” is.
Questions of constitutional interpretation, in contrast, are never questions of fact. You are interpreting a document. There is no way to establish, as a matter of fact, what the document “means,” because “meaning” is not a factual analysis. Therefore, you cannot separate out what the document means “legally” and what it means “factually,” because it has not “factual” meaning. It has a legal meaning; it may have a historical meaning (viewing it as a documentary product of its time); it may have a literary meaning (in terms of how it was written and what it says); but it has no independent “factual” meaning. In law, as in science, “factual” is analogous to “provable.” The Constitution is not “provable.”
Second, the O.J. trial in particular is an event that happened in the past. Considering that the jury’s verdict is well-known and occurred some years ago, a current statement by you that “O.J. is a murderer” would pretty obviously be only your opinion. Contrast that to: “Is this constitutional?” “No.”
This is simply incorrect, as set forth above. And this is not even a particularly “legalistic” interpretation. The interpretation of the “meaning” of a document – any document subject to more than one interpretation – cannot be considered a matter of fact under any definition of the word “fact.”
I understand this, and I respect it. The problem – and, to reitate – the ONLY problem – I had with you initial post is that it was by no means clear you were merely stating your opinion, as opposed to difinitively answering the question. It seemed to me that it might appear that you were attempting to do the latter, in which case a clarification was in order since your answer was by no means the correct one.
Then try just typing the words “I think” before you type “IGWT is unconstitutional.” Or, even easier, just type those two little words THE FIRST TIME you say “IGWT is unconstitutional.” That way everyone will know that you are stating your opinion and that later posts arguing its unconstitutionality are similary building upon that opinion. The problem was that in this thread – as in the last one – your first substantive post firmly states “this is unconstitutional” with no indication that this is merely your opinion, let alone that your opinion is by no means the one currently considered to be the right one. That is why I immediately posted back:
I continue to think your initial post might be misleading and that I was not out of line to clarify it, nor to explain why I felt a clarification was necessary. And I am no more prepared to extend to you the crystal ball of determining what everyone else here understands than I am to extend it to Satan.
The problem is that I knew all along that you were only stating your opinion; we’ve been over this before, as you’ve already noted. I wasn’t attempting to clarify your post for my own sake, but because I felt it might mislead others who might (erroneously) think you knew what you were talking about in so far as the legal import of IGWT is concerned. So if I see you saying “carrying a weapon is unconstitutional” or “student-sponsored school prayers are unconstitutional” or some other statement that is so legally incorrect as to be considered just plain wrong, I ask for (or make) a clarification. If this appears to be so much nit-picking to you, I am truly sorry; it is an important point to me because your initial statement, if left alone, was misleading.
Then I would suggest you read the cases cited above. The analysis is set right out, multiple times. You may not agree with the courts’ conclusion, but someone as smart as you will surely be able to see how they arrived at it.
TRACER says:
I don’t see why this merits the rolled-eye smiley. Let me ask you this: how would you determine what endorses religion? Any mention of God? So if I hammer my thumb and yell “God damn it!” I’m endorsing religion? Surely you can see that reasonable people might disagree with this. So, if reaonable people can disagree, how do you determine whether something is produces a particular effect or not? Are you saying that if one person thinks something endorses religion, then it automatically does? If not, how would you suggest the courts arrive at a determination of what constitutions endorsement?
Jodi wrote:
I don’t see why this merits the rolled-eye smiley. Let me ask you this: how would you determine what endorses religion? Any mention of God? So if I hammer my thumb and yell “God damn it!” I’m endorsing religion?
The term IGWT IMHO (wont fall in that hole) implies a relationship or faith between us and God. Trust (or lack thereof) being an integral part of a relationship.
So I belive that it does in fact endorse religion. Your phrase GDI is more of an invective (hope that was the right term) so it’s not exactly the same.
Sure, but the question is whether that implication amounts to an endorsement of religion, keeping in mind that mere mention is not an indorsement, and further keeping in mind that a statement whose primary effect is secular will not be considered unconsitutional even if it also appears to have an unconstitutional effect in the eyes of some. Again, I’d direct your attention to the cases for a more substantive analysis.
To nitpick a little the court isn’t saying anything about the “average” person here. They’re saying that they don’t think that any “reasonable” person would see it’s use on US currency as an endorsement of religion. So basicly instead of saying something that would justify majorities trampling all over minorities they thinly veil an insult to everyone that disagrees with them.
Personally I don’t like this interperetation, imo the first amendment was written to prohibit endorsment of a religion or religions, as well as to stop government from stomping a religion or religions out. Of course you get into VERY fuzzy issues here such as people creating new religions that define previously illegal acts as worship, or the gov’t endorsing Christianity and Judaism but not Hinduism.
I interperet IGWT to mean “In a god-like entitity we trust” so I don’t think it should be considered illegal. I always wonder about how people who disagree with this think about Army Chaplins? They’re transported with the military, thus they’re getting special treatment from the gov’t which could be interpereted as “endorsment”, but if the gov’t didn’t transport them then they’d be infringing on the soldier’s rights to have last rights if they so desired. (Although many arguments you could use to justify prohibiting murder as worship would probably apply here as well)
Working backwards: If the government wanted to put “God Damn It” on our money, yes, I’d object to that as well. Similarly, if you want to say, “In God We Trust” when you hit your thumb with a hammer, hey, more power to ya.
In a message before that, Jodi said:
Nah. I know you’re not picking on me. If I thought you were trying, I’d be flaming you.
You?! Never! :rolleyes:
Yes. And I know that wasn’t the best way to explain it, but I didn’t have time to work on better word choices. I know that later in your message you disagree that the issue can ever be one of objective fact, but I still think it can be. The problem is finding the perfectly objective person to be the judge (alas, they haven’t asked me yet). There’s not much point in arguing about that, though, because neither of us is going to change our mind on it. < shrug >
I had previously said:
You responded:
Oh, yeah, I see how they arrived at it. But I still don’t see how they can make that claim with a straight face. It just doesn’t even pass the laugh test with me. I mean, fercryingoutloud, it’s saying we trust in God. If that isn’t religious, what the heck is?
We went over this a bit (maybe more than “a bit”) in the older thread, but what if the official government motto was, “We Trust There Is No God”? Or “In Allah We Trust”? Or “In David B We Trust”?
To clarify, the “reasonable person” standard is a nothing more than a legal construct. It’s a way for the courts to take questions that are inherently subjective (such as what something means) and attempt to treat it objectively. Of course, when something (like meaning) is inherently subjective, there is no way to treat it truly objectively. The courts attempt to come as close as they can by asking, not what do I as a judge think of this, or you as a party, but what would an ordinary, reasonable person think of it? It is far different that “majority rules,” which has never been the way the U.S. legal system interprets laws (well, except for the passage of legislation). Certainly it isn’t intended as an insult to anyone.
I assumed DAVID B. understood the difference between opinion and fact, to which he replies:
Surely you see that I can only work with the word choices you make.
Okay, I have two separate problems with this: first, as explained above it’s not a question of “fact” at all and, second (though related) it cannot be determined truly objectively. These are related in that all true facts are “objective,” meaning observable or provable on their own, without recourse to interpretation. And all interpretations, in contrast, are inherently subjective because they are dependent on the person doing the interpreting. That’s why the law resorts to at best quasi-objective (and far from perfect) contructs such as the idea of the universal ordinary, reasonable man when dealing with inherently subjective questions such as constitutionality. If you disagree with this, please explain to me in what way a particular interpretation of the Constitution may be considered an actual “fact,” and the definition of “fact” you are using in so concluding.
There is no such thing as a “perfectly objective” judge; that’s the problem. And you would serve as “Exhibit A” for that assertion as you are obviously far from objective on this issue, going so far as to imply that those who do not agree with you are ridiculous, as their arguments do not even pass “the laugh test.” You would probably be a particularly dangerous person to have as a judge, since the fact that many other jurists, more learned and experienced than you, strongly disagree with you would not raise in your mind for even a single second the possibility, however small, that you just might be wrong.
What if? I’m not so craven as to only support a position I think is legally sound just because it happens to coincide with my own personal beliefs. Constitutionality is a legal analysis; it’s not a popularity contest.
Yes, what if? That wasn’t necessarily directed solely at you, but at the judges who make the same claim (alas, they won’t be here to answer, so for them it was rhetorical).
Oh, and just because I disagree with the judges and think their claims don’t pass the laugh test doesn’t mean I’m not objective. Indeed, it could be quite the other way around. Objectivity is not up to a vote. Indeed, I would say that there are many claims in this world that don’t pass the laugh test, yet millions of people believe in these things. I’m not only talking about religion, but all sorts of paranormal and pseudoscientific nonsense. Does it mean I’m not objective because I don’t believe that crap? Or does it mean I am objective? Now, you may certainly think that I’m not objective, but that’s only your opinion, and you can’t logically support it in the way you tried.
Samclem said:
Dangit, I think you’ve hit the nail on the head. No wonder I haven’t been asked!
Just because I disagree and call their opinions laughable by no means implies that I never thought about it. Frankly, I find it insulting when people take an attitude like this. “If you disagree, you must not have even thought about it for a second.” Bullshit.
Sure, they have their opinions. I have thought about what they said and compared it to what the Constitution says. I find their opinions laughable. You want to disagree, that’s fine, but don’t ever insult me by claiming I didn’t think about it before coming to an opinion.
I think the Supreme Court hasn’t thought about it.
After all, they don’t agree with me.
Yer pal,
Satan
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Actually, it might. I mean how many judges are we talking about. One? Two? Nine? Ten? If I can show you ten jurists who have looked a this issue rationally and in detail, and all reached the same conclusion (the opposite of yours), and you do not even accord their opinions the respect of granting that they are legitimately held and defensible (even if you don’t agree with them), it might indicate a lack of objectivity on your part. The objective observer sees both sides of an issue, even if he or she concludes one particular side is the correct one. The objective observer does not imply that the side he or she disagrees with is indefensible when it obviously is not.
Nor did I imply it was; I simply hazarded a guess that you may not be entirely objective in this particular case.
Which, of course, is not an analogous example, since religion and the so-called “pseudosciences” are matters of strict belief and, to the extent they are not, are largely indefensible (which is why every attempt at “proving” U.F.O.s, for example, breaks down so irretrevably). Legal analysis is an exercise in applies reasoning.
Surely you see that taking a position one way or the other on a legal issue is not a question of “believing in” one side over the other, except to the extent “believe in” is used as a synonym for “support.” I do not “disbelieve” the argument that IGWT is unconstitutional; I just don’t agree with it.
To the extent that I can, I have and I did. I pointed out that your position – the counterargument you disagree with is implicitly so ridiculous no rational person could even “see” it – and reality – three separate circuit court panels have looked at the question and determined the counterargument to be the more valid of the two – and determine that the hyperbole of your position does not necessarily indicate perfect objectivity. Note that this analysis (to the limited extent it even deserves to be considered such) does not turn on which position you happen to support.
It is bullshit, which is why it is fortunate I never said it. “Objectivity” is not synonymous with “thought,” nor is “lack of objectivity” synonymous with, or even indicative of, “lack of thought.” It is telling, however, that you would equate the two, because this whole discussion arose by you saying that what the issue truly needs is an objective judge – such as yourself. This obviously implied that the myriad judges who have looked at it to date are not objective. Did you mean to say they were unthinking, just because they disagree with you? Because that is the leap in logic you are accusing me of, even though I never said any such thing. I’m quite certain you’ve given the issue a lot of thought; however, in light of the fact that you go beyond supporting your view to strongly implying there is no defensible other view – which you do by saying it doesn’t pass the “laugh test” and by saying that no judge looking at it to date has been objective about it – I continue to doubt your perfect objectivity. Is this just my opinion? Sure. And it’s not even one I’m particularly interested in defending, since it has no real relevance to the debate and since you’re apparently affronted by it. But I truly did not mean to personally insult you. Honestly, I would be the last person to trot out the argument that a person who disagrees with me must not have thought out their position; that particular brand of patronization drives me absolutely crazy – as I think you know.
Sure, they have their opinions. I have thought about what they said and compared it to what the Constitution says. I find their opinions laughable. You want to disagree, that’s fine, but don’t ever insult me by claiming I didn’t think about it before coming to an opinion.
Ok I’ve read the Gaylor v US decision. Keeping in mind my previous position in regards to “Trust” implying a relationship, I do not believe it passed the Lemon test. I based that view on this quote from the decision
“Finally, the motto does not create an intimate relationship of the type that suggests unconstitutional entanglement of church and state.”
I do however belive it passes the “Endorsement Test”. Basically, it’s well understood how this country was founded and the historical significance of religion to the early settlers of the US. So a “reasonable person” viewing the motto and having a basic understanding of the history of the US, would probably view the motto as being of historical significance, and not an endorsement of religion.
Kerinsky wrote:
I always wonder about how people who disagree with this think about Army Chaplins?
I believe the use of Chaplains by the Armed forces differs little from many other of their support functions. Because a large number of recruits would have religious backgrounds. It just make sense that the Services would try to make sure that these poeples could practice their religions if for no other reason than to maintain morale.
Couple that with the fact that attendance at religious ceremonies carried out by Chaplains aren’t mandatory, then I see no conflict with the establishment clause.
Well, in normal military life, attendance is not mandatory. In basic training it isn’t mandatory, but it might as well be. In other words, it’s Sunday morning, and everybody is either going to Church or the TI is going to find something for you to do. You want to be the one guy that stays behind and deprives the TI of a couple of hours off and do some shit job he comes up with? I went to church like a good little airman and was happy to have some time away from the barracks, despite my atheism.
That being said, the Chaplains’ existence is no problem for me, and I recognize the necessity.
Ptahlis wrote:
Well, in normal military life, attendance is not mandatory. In basic training it isn’t mandatory, but it might as well be. In other words, it’s Sunday morning, and everybody is either going to Church or the TI is going to find something for you to do. You want to be the one guy that stays behind and deprives the TI of a couple of hours off and do some shit job he comes up with?
Yeah I had asshole DIs like that too at Ft Jackson, though at the time I wasn’t an atheist/agnostic (haven’t made up my mind which campim in yet )
In my experience most people I knew used the worship time for sleeping or checking out the women
)