Monday, November 16, 2015

Brooks Rules Baxter County Nativity Scene Ruled "Unconstitutional"

Federal Judge Timothy Brooks ruled this week that Baxter County was in violation of the First Amendment of the U.S. Constitution because they have displayed a Nativity Scene on the Court House grounds for the past fifteen years while ignoring a request/demand by atheists to put a display celebrating the Winter Solstice.

Brooks wrote in his ruling that County Judge Mickey Pendergrass “must either (1) refrain from placing any religiously sectarian seasonal display on the courthouse grounds, or (2) create a public forum on the courthouse grounds for a seasonal display open to persons of all faiths as well as of no faith at all, without discrimination on the basis of viewpoint.”

Look, I am a Christian, but I am not one to get in an uproar about these outward displays of religiosity. Neither was Jesus if I read Mathew chapter six aright. I have seen too many politicians hide behind these public shows of religion while their policies are unjust. Maybe some of them are doing like Machiavelli advised in his book on advice to ruthless rulers, The Prince. He advised doing the exact opposite of what Jesus commanded. He advised having a strong outward display of religion in order to gain the trust of the people, but not to be restrained by the tenants of religion in the administration of government. I am not trying to insinuate anything about Mickey Pendergrass in particular, because I don't know his policies, but I think its done.

So I don't give politicians a lot of points for outward displays of faith. I look to see if they have virtuous private lives and promote justice in the law. That being said, Judge Brooks is wrong. His ruling is in accordance with the prevailing judicial reasoning of the day, but that's wrong too. Judicial precedent has mutated into something so bizarre that it no longer upholds the intent of the U.S. Constitution, but actually undermines it. Please join me with an open mind to understand how this is so:

First of all, Baxter County cannot violate the first amendment. The first amendment begins "Congress shall make no law....". The First Amendment, like every amendment in the Bill of Rights, was a prohibition on the Federal government. They were not meant to be limitations on state or local governments at all. In particular they were not meant to be prohibitions which empowered the federal government to act as referee. We would never have had a union if that were the case. I discuss and demonstrate this in more detail in Localism, a Philosophy of Government. It may be that Baxter County violated some provision regarding an establishment of religion in the Arkansas Constitution, but it cannot have violated the first amendment of the U.S. constitution anymore than I can violate the code of judicial ethics.

But doesn't the  fourteenth amendment mean that the Bill of Rights now applies to the states? People say that, and courts may claim that, but the fourteenth amendment does not say that.  It does give FEDGOV some limited role in refereeing state behavior, but only when Congress has passed appropriate legislation enabling the provisions of the fourteenth amendment. See the last sentence of the 14th. Unless Congress passes a law to the effect that County Courthouses cannot put up Nativity Scenes then the courts have no legitimate power under the 14th to rule there is a violation. Congress having made no such law, the court has exceeded its legal and constitutional authority. And that is only if the act in question is something that is subject to the 14th amendment. Recent courts have expanded the definitions of "equal protection" and "due process of law" to a degree that deserves to be considered ridiculous, that deserves to be ridiculed, but for now must be taken seriously.

We don't have nearly so big a problem with a state laws favoring an "establishment of religion" in America as we do with Judicial Over-reach and usurpation. That's the larger present threat to our republic.


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