A Must Read: American Exceptionalism

Dear Faithful Readers:

You all know by now that I'm a true believer in the ideal of American exceptionalism. I've done my best thus far to articulate exactly what that means with some degree of success, in my humble opinion. But here is another view that I think captures it better than anything I've ever read or written. Enjoy!

http://www.spectator.org/dsp_article.asp?art_id=13414

Boumediene v Bush

I can't say I understand why the Gitmo cases are named as "Terrorist Name" v Bush. The Congress enacted the DTA law that was being challenged in Boumediene v Bush, primarily at the behest of the Supreme Court. Viewed properly, Boumediene was challenging the law of these United States of America, as the Islamic terrorist war against America began long before George W. Bush took the oath of office. And it is the United States of America, not just George W. Bush, who has lost handily in the exercise of raw judicial activism by a rogue majority on the Supreme Court.

There is no greater threat to our republic than judicial activism. What is judicial activism? It is substituting a personal policy preference for the law, or twisting the law or Constitution to achieve the personal policy preference. Judicial activism can occur on both sides of the political spectrum. Those who decry judicial activism should abhor it whether it's liberal or conservative if they seek to maintain any sense of intellectual honesty. The biggest threat in the current era is liberal activism; namely, inventing constitutional rights where none exist, or tossing the rule of law to implement a personal policy choice. Boumediene v Bush is a perfect example of liberal activism at its absolute worst.

For the first time in the history of the right of habeas corpus, our Supreme Court has seen fit to afford this American constitutional right to alien enemy combatants. We're not referring to American citizens caught on a foreign battlefield. We're talking about alien enemies of the United States caught in battle waging war against our troops on foreign soil. This is absolutely insane. The purpose of habeas is to ensure American citizens the right to face his or her accuser, to produce the body as it translates from latin, in order to challenge incarceration. The American court system is delicately balanced in order to ensure this right to our citizens as protected by the Fifth Amendment to our Constitution. Now, the Supreme Court has seen fit to discard two hundred-plus years of precedent as well as the age old understanding of English common law in order to bring under the umbrella of our founding document those who seek to destroy the country that document founded, and would murder instantaneously the People who framed that very document. If this isn't an exercise of raw judicial activism, the term no longer holds any meaning. But alas, it does.

Chief Justice Roberts has proven himself to be faithful to the Constitution, and in an absolutely withering dissent, joined by the only 3 other sane members of the Court, articulated why the majority's reasoning was NOT faithful to the law or the Constitution, and that the DTA had established a rigorous statutory scheme to afford alien enemy combatants more protection than they had ever been afforded before in the history of our republic. But this wasn't good enough for the majority. They had to go one step further, create a mockery of the rule of law, the separation of powers and the Constitution itself. If our Constitution protects terrorists in this manner, who on earth CANNOT claim the same constitutional protections when coming in contact with any American citizen, whether or not they're on sovereign American soil? This is the fundamental breaking point with all of the laws and precedent established throughout our nation's history: an enemy alien combatant captured on foreign soil waging war against the United States is NOT to be afforded the constitutional right of habeas corpus; if he or she had been captured within the United States, the conversation would be different. Will our armed forces now be required to read these terrorists their Miranda rights? Collect evidence? Cease interrogation immediately upon the request of counsel? These are fundamental questions that derive specifically from the majority's twisted opinion but they didn't even bother to answer a single one of them. They just overruled the two other co-equal branches of government and usurped the power to make a sort of war and foreign policy soup for themselves. And the American people are the ones lucky enough to get to eat this poisonous soup.

Justice Scalia wrote in his dissent that the nation would forever regret the Court's decision in Boumediene v Bush. We can only hope the the two other branches of our constitutional government discover the backbone of President Andrew Jackson who said, in response to Chief Justice Marshall's ruling in Cherokee Indians v State of Georgia, "John Marshall has made his decision, now let him enforce it." Just so. Justice Kennedy has made his decision in Boumediene v Bush, now let him enforce it. And let the impeachment proceedings of the rogue majority of the Supreme Court begin without delay.

Rights or Privileges?

Those who refer to themselves as pro-choice are generally men and women of good will who just disagree with those who refer to themselves as pro-life. In a constitutional republic, such disagreements on such a scale are unfortunate but the residue of vigorous thought and debate. The fringes of both sides tend to get the most press and therefore broad brushstrokes are used where perhaps something like a sharpened colored pencil would be more appropriate. What's also unfortunate is that in our constitutional republic, many of these choices that animate our citizenry are increasingly ripped from our hands and instead decided by a few tyrants cloaked in black robes, sitting up high and rendering unto us, the lowly electorate, our daily medicine. To name a few: Roe v Wade; the Massachusettes and California Supreme Courts "legalizing" homosexual marriage; further back Dred Scot and Plessy v Ferguson; and today, sadly, Boumediene v Bush.

At least today we've been thrown a change-up and been slapped by an out of control legislature in the state of Colorado. The crusade for homosexual privileges has inevitably collided with our constitutionally protected rights of religious liberty. We're often treated to the discussion of our "rights", what our "rights" are or ought to be. It's the argument I made many times as a child to my mom and dad when I was being rebuked for bad behavior: "It's my right!" Now, I'm absolutely not saying that those who seek their "rights" are behaving as children. What I'm saying is that the comment is a red-herring designed to blur the distinction between rights and privileges. And it is here, in this distinction, where the conversation begins.

A privilege is something that we're granted as a benefit or favor. Staying out past midnight, a sip of wine at Sabbath before our 21st birthday, the exhilirating moment of our first kiss. These are privileges granted by one to another. Viewed through this lens, employer-paid medical benefits are a privilege. Who on earth would argue that an employer MUST provide medical benefits at their expense? They're generally reserved for staff employees but not freelance employees. Distinctions are made. One might even call it legal discrimination. Are those freelance employees being denied their "right" to medical insurance? Hardly.

A right, on the other hand, is something we possess inherently as members of the human race. Those rights are beautifully articulated for all of humankind in the American Declaration of Independence. It states "We hold these truths to be self-evident, that all men are created equal and that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness." What the American founders touched on was an idea newly articulated in human history: that the rights of men and women are not granted to us by government (which would then make them privileges, able to be revoked on a whim by that government), but that our rights are inherent and we possess them much the same as we possess blood in our veins and a beating heart in our chest. They are ours, not to be taken or destroyed (hence the term unalienable: unable to be surrendered or transferred, or destroyed by government).

So it is do we find ourselves grappling with the distinction between rights and privileges in this collision between the normalization of the homosexual lifestyle versus the twin pillars of religious liberty and the freedom of speech. To keep this blog posting from carrying on ad infinitum, let's focus solely on the prospect of homosexual marriage and the counterpoint of the religious liberty of Christians. Since its inception as a religious and biblical institution in the vain of traditional Judeo-Christian theology, marriage has always been properly understood as the union of one man and one woman. In seeking to redefine the word and the institution, homosexuals are seeking to assert for themselves as a "right" what is really a privilege bestowed by the state in terms of recognition, tax benefits (there's that word again... benefits!), etc. As a matter of pure constitutional law under the Equal Protection Clause, we see the folly of the argument that a certain person or persons are being denied their equality: every man and woman, hetero or homo, has the privilege to marry one person of the opposite sex. Let's continue the argument further. Marriage seeks to create a lasting partnership between a man and a woman in order to procreate within the confines of a healthy relationship that is ultimately in the best interests of children. To argue otherwise, despite the good will, is to state that a father or a mother has no unique benefit to the raising of a child. The science proves otherwise. To go further, the counter argument is that marriage is really about love, and why shouldn't we be able to marry who we love? That's a lovely sentiment, but it ignores the obvious. To bless the union as solely a union of love, what's to stop three people in love from getting married? How about four people? How about a father and his daughter? Or a brother and a sister? If the privilege of marriage as defined by the people (one man, one woman) is truly a right to be redefined and bestowed based upon love, how can we argue that the people have a fundamental right to draw the line anywhere? Is this not anarchy?

Now, in Colorado do we see what this shifting of privileges to rights has brought us: the criminalization of Christianity and the absolute erosion of religious liberty in America. This morning, before I had even read about this egregious assault on religious liberty, I was telling my girlfriend about pastors in Canada who were being prosecuted for sermonizing the Christian beliefs against homosexuality, and that we weren't that far away here in America. I was vindicated, though I take no solace in that fact. The criminalization of speech and religion in America is underway. Our fundamental rights to speak and worship freely, both articulated as our unalienable rights of the very FIRST Amendment to our Constitution are being subjugated to the privileges of a vocal minority with the very vocal support of our activist, black-robed high priests. Nowhere in our Constitution do we see an articulated right to marriage of any sort, whether it be hetero or some other social compact devised by the citizens of the republic (civil unions, etc). Rather, it is a statutory privilege and as such the state (the people) have the right to define it however they see fit, and in America the people have defined it as the union of one man to one woman. In Colorado, and soon to be America writ large, to speak out as a man or woman of faith against homosexuality outside of the walls of the church is a crime, reducing our unalienable rights of speech and the free exercise of religion to offenses punishable by the brute force of government as the onslaught of political correctness continues unabated and the agenda of privilege is advanced and elevated to an even higher status than rights actually enshrined in our Constitution.