Two arguments down

Charles Foster Kane has done such an impressive job of picking apart one of Gregg Jackson’s spurious propositions that I’m inspired to take on another one. Like Kane, I’ll rely on columnist Thomas Sowell’s description of what’s in Jackson’s book, “Conservative Comebacks to Liberal Lies,” since Jackson himself won’t send me a copy.

According to Sowell, one of the “liberal lies” that Jackson exposes is the idea that “the Constitution of the United States provides for ‘separation of church and state.'” Sowell continues:

Among the historical facts [brought forth by Jackson] is that there is absolutely nothing in the Constitution about a “separation of church and state,” despite how often that phrase has been repeated in the media, in politics, and even in courts of law.

Over the years, liberal judges have twisted the First Amendment’s phrase about “free exercise of religion” to mean the opposite — that you are not free to exercise your religion if atheists or members of non-Christian religions say that they are offended.

Whatever the best social policy might be as regards Christmas displays or the use of vouchers in parochial schools, none of this is banned by the Constitution. Some judges, however, use the Constitution as a blank check, authorizing them to ban whatever they don’t like and call it Constitutional law.

Now, I think we’ve all known since the sixth grade that Jackson and Sowell are correct about the wording of the Constitution. Here is what the First Amendment actually says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

But does it therefore follow that the “separation of church and state” is a myth foisted upon an unsuspecting public by liberals, the media and — well, you know, the liberal media? You will probably not be surprised to learn (although Jackson might be stunned) that the phrase and the concept go back to the Founders.

Because the Constitution is terse and at times cryptic, all good legal scholars — even conservatives — rely on contemporaneous source material to help them determine the meaning and context behind particular sections. (One might even say especially conservatives, since it is they who say they are most interested in sticking to the Framers’ original intent.)

The Federalist, of course, is the best-known example of this extra-constitutional source material: a series of essays written by Alexander Hamilton, James Madison and John Jay with the intent of persuading the state of New York to adopt the Constitution. The Federalist, however, was written before the Bill of Rights. Thus we must look elsewhere.

It turns out that Madison, sometimes called “the Father of the Constitution,” as well as the author of the First Amendment, is also the father of the separation of church and state. Here are a few quotes on the subject from our fourth president:

The civil Government, though bereft of everything like an associated hierarchy, possesses the requisite stability, and performs its functions with complete success, whilst the number, the industry, and the morality of the priesthood, and the devotion of the people, have been manifestly increased by the total separation of the church from the State (Letter to Robert Walsh, Mar. 2, 1819).

Strongly guarded as is the separation between religion and & Gov’t in the Constitution of the United States the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history (Detached Memoranda, circa 1820).

Every new and successful example, therefore, of a perfect separation between the ecclesiastical and civil matters, is of importance; and I have no doubt that every new example will succeed, as every past one has done, in showing that religion and Government will both exist in greater purity the less they are mixed together” (Letter to Edward Livingston, July 10, 1822).

I must admit moreover that it may not be easy, in every possible case, to trace the line of separation between the rights of religion and the civil authority with such distinctness as to avoid collisions and doubts on unessential points. The tendency to a usurpation on one side or the other or to a corrupting coalition or alliance between them will be best guarded against by entire abstinence of the government from interference in any way whatever, beyond the necessity of preserving public order and protecting each sect against trespasses on its legal rights by others. (Letter Rev. Jasper Adams, Spring 1832).

To the Baptist Churches on Neal’s Greek on Black Creek, North Carolina I have received, fellow-citizens, your address, approving my objection to the Bill containing a grant of public land to the Baptist Church at Salem Meeting House, Mississippi Territory. Having always regarded the practical distinction between Religion and Civil Government as essential to the purity of both, and as guaranteed by the Constitution of the United States, I could not have otherwise discharged my duty on the occasion which presented itself (Letter to Baptist Churches in North Carolina, June 3, 1811).

Thomas Jefferson’s views are often dragged into the debate by those who oppose church-state separation, since Jefferson himself was no friend of the Constitution. Far better to rely on Madison, as strong a supporter of the Constitution as there was in the early days of the Republic, as well as the undisputed expert on the meaning of the First Amendment.

Note what I am not saying. I’m not saying that every single action taken by the courts in the name of “the separation of church and state” is proper. I think we need to be reasonable. Obviously every person’s idea of reasonable is different, but lines have to be drawn somewhere. Personally, crèches on public property and the phrase “under God” in the Pledge of Allegiance don’t bother me, but mandatory school prayer does, even if there’s an opt-out provision.

The point is that the concept has a long and noble history going back to the drafting of the Constitution. Gregg Jackson’s assertion that the Constitution does not provide for the separation of church and state is technically accurate — but manifestly untrue.


The Texas Railway Killer and me

It wasn’t until last night that I heard about the execution of Angel Maturino Resendiz, the so-called Texas Railway Killer, with whom I had a close psychic brush seven years ago. First he murdered a minister and his wife whom I’d gotten to know a bit. Then I spent one harrowing night thinking he was coming after me and family. (He wasn’t. But still.) You can read about it here and here.

It’s Muzzle time

My annual Fourth of July roundup of those who undermined free speech and civil liberties in New England is in the new Phoenix. Please have a look.

Best wishes to The Commish

ESPN’s Peter Gammons, a pioneering baseball writer for the Boston Globe, is recovering from surgery to treat a brain aneurysm.

More on that UN document

A news story in today’s New York Times mentions this item by retired American diplomat Victor Comras. It is the same item referenced by the Times editorial to which I linked last night.

Comras writes that “reports on US monitoring of SWIFT transactions have been out there for some time. The information was fairly well known by terrorism financing experts back in 2002.” And he quotes from a publicly available (though not this morning) report he wrote for the United Nations:

The settlement of international transactions is usually handled through correspondent banking relationships or large-value message and payment systems, such as the SWIFT, Fedwire or CHIPS systems in the United States of America. Such international clearance centres are critical to processing international banking transactions and are rich with payment information. The United States has begun to apply new monitoring techniques to spot and verify suspicious transactions. The Group recommends the adoption of similar mechanisms by other countries.

Now, there’s exposure and there’s exposure. I suppose you could argue that the terrorists don’t spend their time perusing the UN’s Web site (although I wouldn’t be surprised if they do), but that articles published on the front of the Times are likely to capture their attention. But we’re starting to slice the salami pretty thinly here.

A number of people have made the point that the terrorists already knew their finances were being tracked. Now we know that it’s been publicly known since at least December 2002 precisely how that tracking is taking place.

Cries of espionage and even treason are starting to look fairly ridiculous.

The White House and its defenders also give the game away by refusing to differentiate between the NSA no-warrant wiretapping program — obviously illegal, given that the Foreign Intelligence Surveillance Act requires warrants — and the SWIFT program, which appears to be on more solid legal ground.

By lumping them together, folks like U.S. Sen. Pat Roberts, R-Kan., make it clear that they’re only interested in scoring points against the media.

Update: More on Comras from today’s Boston Globe:

Victor D. Comras , a former US diplomat who oversaw efforts at the United Nations to improve international measures to combat terror financing, said it was common knowledge that worldwide financial transactions were being closely monitored for links to terrorists. “A lot of people were aware that this was going on,” said Comras, one of a half-dozen financial experts UN Secretary General Kofi Annan recruited for the task.

“Unless they were pretty dumb, they had to assume” their transactions were being monitored, Comras said of terrorist groups. “We have spent the last four years bragging how effective we have been in tracking terrorist financing.”

Read the whole thing. It’s starting to look like the Times’ best defense is that this is very old news.

Update II: By the way, I’m not saying this line of defense is something of which the media ought to be proud. Take it away, Jay:

The media is now faced with two unattractive scenarios: A.) Defend the articles as news — and face up to the consequence that outlets reported on what appears to be a lawful and effective program or B.) Admit the articles weren’t news — and face up to the consequence that the public now knows outlets didn’t do basic pre-publication research.

I’m not sure I agree, but at the moment I can’t say I disagree, either. How’s that for decisiveness?

Common sense and SWIFT

Because I’m still thinking my way through this, I’m intrigued when I see anything calm and reasonable on the SWIFT story. From Andrew Sullivan, conservative and pro-war:

If I were Bill Keller (fat chance, I know), I probably wouldn’t publish. On the other hand, publishing it does not, it seems to me, obviously render the program ineffective. And the Malkinesque charges of treason seem a little, er, excitable.

The New York Times will publish an editorial tomorrow that contains this intriguing passage:

[A] United Nations group set up to monitor Al Qaeda and the Taliban after Sept. 11 recommended in 2002 that other countries should follow the United States’ lead in monitoring suspicious transactions handled by Swift. The report is public and available on the United Nations Web site.

I couldn’t find it. Has anyone got a link? A relevant excerpt?

The “T” word

A reader called my attention to Jules Crittenden’s latest in the Boston Herald, in which he accuses the New York Times of treason. Obviously I disagree. It will be interesting to see whether this is the Herald’s front page tomorrow.

But you know what? I think this is where we may be heading. No one is going to charge Arthur Sulzberger Jr. and Bill Keller with treason, but Attorney General Alberto Gonzales, U.S. Rep. Peter King and others are calling for an espionage case to be brought against the paper.

The Washington Post’s Howard Kurtz today writes on his blog: “Man, I have never seen this kind of Times-bashing before.”

I’m afraid we may just be getting started.