IM: Ted Kennedy, who did us some service…

I was barely five when Jack Kennedy died in Dallas. When Pope John, that other liberal icon of a relatively conservative Ireland, died a few months later my mother reports that my first reaction was to ask her “who shot him?”. Today, I doubt any of my kids will even have noticed the passing of what was once Irish America’s first family.

Ted Kennedy’s life and career were acted out within the penumbra of his brothers’ unworldly aura of saintliness and flecked with both huge failure and considerable success.
The Daily Telegraph spare no blushes with a vivid report of what happened that fateful night in 1969 when as a still relatively young Senator he drove his car off the bridge at Chappaquiddick and led to the tragic drowning of his companion Mary Jo Kopechne. His desertion from the scene, permanently separated him from any mythical notions of Camelot.

His 1979 attempt at the Whitehouse was doomed almost as soon as he declared his hand against President Carter with mere mention of his dark past, despite previously high poll ratings. Nevertheless, even his political opponents accept that his prodigious career in Congress (from 1962 until last night) was hugely impressive. David Lightman quotes historian Al Felzenberg:

…the more effective Kennedy became, the more conservatives and comedians kept stinging him. “Conservatives have raised more money in direct mail from criticizing Ted Kennedy than anyone, until the Clintons came along.”

Paradoxically, it was the conservatives who lent on Kennedy to ‘make things right’ in the current health reform debate that saw Congress head into recess without agreement:

Kennedy could typically work the telephones back to Washington for several hours a day as his energy permitted, and when the bill was finally reported July 15 after a marathon series of markups, he was described as almost giddy, laughing on the phone.

But Republicans complained that without Kennedy, Democrats were less willing to make the concessions needed for true compromise. As Senate action stalled before the August recess—and the national debate swung wildly at the grassroots level—Kennedy’s absence was felt more sharply.

Yeah, well, maybe. But his key role in latter years was as a sharp and intelligent fixer and a powerful back room convenor is not in doubt. As Dan Kennedy notes on CIF:

He was the quintessential public man, and he died in public, plotting who should succeed him even as his terminal illness kept him out of sight and away from the work he loved so much.

Whoever gets Ted’s seat will directly influence the fate of Obama’s healthcare legislation.

Kennedy was once described as the best politician in the family by his older brother Jack. Yet his life was pockmarked with the kind of inferior human qualities that would spell the end of any politician in a modern era when ‘character’ matters more than any ability to actually do the job.

No doubt, as Conall notes, his was a pivotal role in directing President Clinton’s attention to the old sore of Northern Ireland’s interminable troubles: no doubt also informed by Clinton’s own pressing need to divert attention from his not inconsiderable troubles at home, and his urgent search for legacy.

In comparison to his older brothers, Teddy Kennedy had little talent for showmanship or statesmanship. But his virtues were of a frequently traduced Machiavellian kind which are nonetheless essential to the free running of the democratic wheels of state. And in the process, he may have done some service to at least one small part of the world. Even if we barely know it.

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  • OC

    “Whoever gets Ted’s seat will directly influence the fate of Obama’s healthcare legislation.”

    Link doesn’t work.

    “Under Massachusetts state law, a vacancy in the U.S. Senate forces the Massachusetts governor to call a special election between 145 and 160 days after it becomes official.”

    At the end, he tried to get the Mass. legislature to quickly change the law to allowing the Governor to appoint his successor. Which was the law before Kennedy got the legislature to change that law to the current form.

    Why? In both cases, it was simply politics. Protect a Democrat Senate seat at any cost.

    Teddy would hardly have a chance in any State outside Mass.

    Lyrics from a song that a friend wrote years ago:

    They said that Teddy left his girlfriend in a lake.

    It wasn’t his fault – just an honest mistake.

    But for that the people said to make him pay.

    But a little bit of money, honey, goes a long, long way.

  • donegal john

    Good riddance to ted kennedy

    Only missed by nationalist Ireland.

    once again Good Riddance

  • Dread Cthulhu

    OC: “Teddy would hardly have a chance in any State outside Mass.”

    I’m not so sure… he was a testament to name recognition and I think that whatever state the family has risen to prominence in, he would have a chance in that state, with the possible exception of Utah.

    Ohio keeps threatening to send up another Taft, Tennessee gave us two Gores, Alaska and the Murkowskis, etc.

  • DC

    A Celine Dion “My heart will go on” music file should be embedded in the background.

  • Mick Fealty

    All politics is local lads…

  • Greenflag

    Mick Fealty ,

    ‘Yet his life was pockmarked with the kind of ‘inferior’ human qualities etc’

    Poor choice of words . You are bending over too far backwards in an attemt to placate the anti TEDs . Flaws was the word Rory Carr used and I’d say Rory got it right. Good luck btw in your search for politicians with ‘superior’ human qualities . You may find them up in Stormont , the Dail or Westminster . I for one will be delighted to hear of the existence of any such paragons of virtue .

  • Greenflags

    OC,

    ‘Teddy would hardly have a chance in any State outside Mass.’

    I doubt if any other family in the USA since it’s foundation has given as much to the USA in terms of lives and public service as the Kennedys. From oldest brother Joe who gave his life in WW2 to JFK, Robert, Ted and Eunice Shriver and others .

    As for possibly Utah ? You might be right. But then it was the Kennedy’s who held up the separation of Church & State in the US Constitution in accordance with the founding fathers declarations. It’s the latter day bible bashing born againers who want to introduce religious sectarianism into the USA . They might want to take a look at Northern Ireland to see exactly where that idiocy leads !

  • Mick Fealty

    That’s mild compared to the way it could have gone GF. The problem with giving TED a fair eulogy is how much or how little you choose to dwell on Chappaquiddick.

    I chose as much as I dared, without obscuring his achievements as a legislator and political icon.

    But the more you think about those events (no matter how TED friendly you are) the more appalling they become.

  • Greenflag

    Mick ,

    ‘is how much or how little you choose to dwell on Chappaquiddick’

    IIRC the local court judged his behaviour to have been a misdemeanour i.e fleeing from the scene of an accident. He may/may not have had drink taken . He was given a suspended sentence and probationed for a year . Chappequiddick effectively destroyed any chance he would have had of becoming US President .

    For Mary Jo Kopechne’s family the tragedy was of course far worse .

    People as individuals can become broken by events in their past -events that they would have handled differently in hindsight . I suppose the same can happen to entire communities e.g NI which is finding it very difficult to avoid being ‘broken ‘ by it’s past.

    Maybe the NI ‘anti teds’ could take a leaf out of Kennedy’s life and rise above their navel gazing:(?

  • Dread Cthulhu

    Greenflags: “I doubt if any other family in the USA since it’s foundation has given as much to the USA in terms of lives and public service as the Kennedys. From oldest brother Joe who gave his life in WW2 to JFK, Robert, Ted and Eunice Shriver and others .”

    On the other hand, there may not have been a family that has taken as much from the nation in the process. The blemishes get air-brushed out post mortem.

    Greenflag: “But then it was the Kennedy’s who held up the separation of Church & State in the US Constitution in accordance with the founding fathers declarations.”

    Codswallop. Teddy was anti-abortion right up until he made the political calculation that it was profitable to switch sides. The founding fathers did not call for a “separation of church and state,” they wrote into the Bill of Rights that there was not to be a national religion, as was the norm in Europe at the time. The terminology “separation of Church and State,” ironically enough, doesn’t even arise until the nineteenth century, dealing with the state of NY’s refusal to fund parochial schools.

    Greenflag: “IIRC the local court judged his behaviour to have been a misdemeanour i.e fleeing from the scene of an accident. He may/may not have had drink taken . He was given a suspended sentence and probationed for a year . Chappequiddick effectively destroyed any chance he would have had of becoming US President .”

    Sure… if you think that the judge was wholly unbiased by Pappa Joe’s political influence and the warm fuzzy feelings toward John and Bobby. Not getting to be President is hardly sufficient punishment for a death. Were he Edward Moore and not Edward Moore Kennedy, things would not have turned out nearly as well for him.

    Teddy’s hypocrisy — he once decried political influence in matters of justice following the pardoning of Nixon in a wholly outraged and un-ironic tone — new few bounds.

  • kensei

    DC

    Separation of Church and State is a direct consequence of no national religion. How exactly can it be else?

  • Dread Cthulhu

    kensei: “Separation of Church and State is a direct consequence of no national religion. How exactly can it be else? ”

    Actually, it isn’t. Several of the states maintained state religions into the nineteenth century.

    Not favoring any one religion as a national religion should not ban religion from the public square, as some think it should.

    The court doctrine arises from anti-Catholic bias — the “public schools” were, in reality, providing a Protestant education. It also creeped in through some cases dealing with followers of the book of Mormon.

    Besides, all the Constitution says is “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” That is hardly the hostile separation that some seem to mistakenly believe the Constitution mandates.

  • kensei

    DC

    I know someof the backgrund. And I don’t believe religion should be banned from the public square. But you can’t legislate religion without violating the first amendment. If you enshrine the part of one religion, you establish it above others. If if it is something generally applicable to say Christainity, or even Judeo-Christainity, you still discriminate against Muslim’s, Hindus, Buddhists, Atheists…

    It doesn’t matte rif you are the only follower of your religion. The Constitution does not specify a volume. So yes, religion can and should be in the public square. But it must win arguments on Earthly standards and rational argument, not appeals to the divine.

  • Dread Cthulhu

    Kensei: “I know someof the backgrund. And I don’t believe religion should be banned from the public square. But you can’t legislate religion without violating the first amendment.”

    The Bill of Rights is a list of negative powers — it lists what the *central* government cannot do — the First Amendment, in and of itself does not enjoin the States in any way.

    After that, it all depends on whether you believe the 14th Amendment applied the whole of the Bill of Rights and all amendments to the states, which is inconclusive to date — many are shaky on the Second Amendment, for example. The adhere to most of the Bill of Rights and Amendments and generally harmonize state laws to agree with Federal law, but not all State laws are required to agree with that of the Central government. Likewise, if you factor in the 10th Amendment, the U.S. government has far less power, legally speaking, then they have claimed.

    kensei: “If you enshrine the part of one religion, you establish it above others. If if it is something generally applicable to say Christainity, or even Judeo-Christainity, you still discriminate against Muslim’s, Hindus, Buddhists, Atheists…”

    Freedom of religion does not equal freedom from religion. Likewise, one needs but follow the news to see that not all religions are equal, even in the eyes of the state. Locally, the state legislatures put for laws under the advocacy of a pair of gay atheists specifically targeting the Roman Catholic faith, so it isn’t as if the liberal left has a better grasp on the issue, either.

    kensei: “It doesn’t matte rif you are the only follower of your religion. The Constitution does not specify a volume. So yes, religion can and should be in the public square. But it must win arguments on Earthly standards and rational argument, not appeals to the divine. ”

    Which has little enough to do with Kennedy and his hypocrisy on religion, although he pales in comparison to Kerry, who was, until he ran for President, Irish and Catholic once every six years.

    What the Constitution says and what folks have stretched it to mean are two different things.

  • Greenflag

    Dread Cthulu,

    ‘That is hardly the hostile separation ‘

    Who said anything about ‘hostile ‘ separation apart from yourself ? Separation is separation . It does’nt have to be hostile .

    ‘Teddy was anti-abortion right up until he made the political calculation that it was profitable to switch sides.’

    People’s views on abortion vary from ‘opposed ‘ in all cases at one extreme to leaving it entirely to the woman’s decision at the other . Most people in the USA while opposed to abortion personally accept that others of a different faith or no faith see the issue differently . In that respect Ted Kennedy was reflecting the views of his constituency which would have been one with a high percentage of RC’s and others opposed to abortion .

    Anyway keep appealing to the Divine . Lets know when you get an answer !

  • Dread Cthulhu

    Greenflag: “Anyway keep appealing to the Divine . Lets know when you get an answer ! ”

    I’ll start by praying for you punctuation skills and your intellectual integrity… You quote from my side-discussion with Kensei to stirrup up a comment that I’m appealing to the divine, when all I am doing is rubbishing the notion of Secular Saint Teddy the Green.

    Greenflag: “People’s views on abortion vary from ‘opposed ’ in all cases at one extreme to leaving it entirely to the woman’s decision at the other . Most people in the USA while opposed to abortion personally accept that others of a different faith or no faith see the issue differently . In that respect Ted Kennedy was reflecting the views of his constituency which would have been one with a high percentage of RC’s and others opposed to abortion .”

    Teddy was a political opportunist of the first water who was elected Senator only because his brother and his father found a seat-warmer to hold the seat until Teddy turned 30. He was a coward who used Daddy’s influence to get out of the army early and to get back into Harvard after getting caught cheating. He’s a drunkard who fled, leaving Mary Jo Kopeckne to drown, more interested in preserving his Senate seat than rescuing the young lady.

    In short, he was a cur of the upper class who speak well on socialism, but never so much that it impinged on him personally.

  • kensei

    DC

    We are discussing the Federal Governemnt, and any talk of state government simply muddies the water. If a state decided to enshrine a state religion, that would quickly become a matter for the Supreme Court. I’d guess they’d shoot it down, but it’s not strictly relevant to this discussion.

    Freedom of religion does not equal freedom from religion.

    If Freedom of Religion does not have a none option, it’s not truly freedom of religion.

    Likewise, one needs but follow the news to see that not all religions are equal, even in the eyes of the state. Locally, the state legislatures put for laws under the advocacy of a pair of gay atheists specifically targeting the Roman Catholic faith, so it isn’t as if the liberal left has a better grasp on the issue, either.

    The separation cuts both ways: the state needs to stay out of religious affairs. The state should have no right to determine what the Catholic Church considers marriage, not tell it who it can marry. It can and should, however, make appropriate changes to the legal contract called marriage. The Catholic should be welcome in that debate, but its arguments assessed on its own merits.

    The Left can forget that, and there is the authoritarian left as there is the authoritarian right. You are touch biased though, DC.

    Which has little enough to do with Kennedy and his hypocrisy on religion, although he pales in comparison to Kerry, who was, until he ran for President, Irish and Catholic once every six years.

    What the Constitution says and what folks have stretched it to mean are two different things.

    “Folks” including the Supreme Court, DC? They would be your prime “stretchers” in all areas right there. Presumably as was intended. the world is not static.

    I didn’t say anything on Kennedy by the by. I simply said the language of the first amendment makes separation of church and state a natural consequence. And while you could debate whether separation really means the state can never part fund anything anyway connected to religion, that’s trailing around the edges rather than the main deal.

  • Dread Cthulhu

    kensei: “We are discussing the Federal Governemnt, and any talk of state government simply muddies the water. ”

    Any discussion of the Bill of Rights has to take into account of the states, Kensei — the whole purpose of the Bill of Rights is to preserve the powers and the prerogatives.

    kensei: “If Freedom of Religion does not have a none option, it’s not truly freedom of religion.”

    Not what I said — you may choose to abstain, but you do not have the right to force your abstention upon the town square, which is a common misunderstanding amount atheists on this side of the pond.

    kensei: ” The separation cuts both ways: the state needs to stay out of religious affairs. The state should have no right to determine what the Catholic Church considers marriage, not tell it who it can marry. It can and should, however, make appropriate changes to the legal contract called marriage. The Catholic should be welcome in that debate, but its arguments assessed on its own merits.”

    This instance wasn’t a debate, this was an attempt to legislate how the Church organizes itself internally and solely and specifically targeted the Catholic faith.

    kensei: “The Left can forget that, and there is the authoritarian left as there is the authoritarian right. You are touch biased though, DC.”

    So are you, Kensei.

    kensei: ““Folks” including the Supreme Court, DC? They would be your prime “stretchers” in all areas right there. Presumably as was intended. the world is not static.”

    And the founding documents of the United States have a mechanism to change them, the Amendment system. That is not what is being done. Find me the part of the Constitution where it says the Supreme Court gets to redefine what the Constitution means. The SCOTUS can rule upon whether or not a law is Constitutional, not what the Constitution means.

    kensei: “I simply said the language of the first amendment makes separation of church and state a natural consequence.”

    And you would not be correct — there have been priests and reverends elected to Congress, the Congress maintains a chaplain and, until the Roman Catholics wanted funding, the nation had a rather definite pro-Protestant bent.

    What has happened is that the poisonous fruit of that decision has been used to other ends. We have had court decisions where judges have tried to convince folks, with a straight face, that NY schools can recognize / observe Eid and Chanukkah since the crescent and star and the menorah aren’t religious symbols.

    All the constitution says is that the Federal government cannot play favorites among the religions. Great on paper, tricky in practice.

  • kensei

    DC

    Any discussion of the Bill of Rights has to take into account of the states, Kensei—the whole purpose of the Bill of Rights is to preserve the powers and the prerogatives.

    Whether the states wish to violate the first amendment is a separate issue.

    Not what I said—you may choose to abstain, but you do not have the right to force your abstention upon the town square, which is a common misunderstanding amount atheists on this side of the pond.

    I ain’t an atheist. But the positions are not equal. One people are arguing for a neutral environment. The others wish to lift up their religion above others. Only one interferes with others.

    This instance wasn’t a debate, this was an attempt to legislate how the Church organizes itself internally and solely and specifically targeted the Catholic faith.

    And assuming you are correct, it’s a violation of the same principle. I am confused as to where you think I’m being inconsistent.

    So are you, Kensei.

    I ain’t got a horse in this race.

    And the founding documents of the United States have a mechanism to change them, the Amendment system. That is not what is being done. Find me the part of the Constitution where it says the Supreme Court gets to redefine what the Constitution means. The SCOTUS can rule upon whether or not a law is Constitutional, not what the Constitution means.

    The SCOTUS has to apply the law to a world that is vastly different from the foundation of the Republic. Who could have foreseen digital privacy rights for example? The SCOTUS gets the cases where they have to make decisions and draw lines. It is impossible to avoid interpretation, and naive and is honest to suggest otherwise.

    Sometimes that goes too far, or goes wrong. But if it wasn’t needed, the job could be done by a computer.

    And you would not be correct—there have been priests and reverends elected to Congress, the Congress maintains a chaplain and, until the Roman Catholics wanted funding, the nation had a rather definite pro-Protestant bent.

    Simply because the logic had not been pursued to its obvious conclusion. Slavery existed in the US, civil rights abuses existed, and the Constitution was a wonderful document to force you to correct it once the provisions and ideas where brought further to fruition. It really is the most revolutionary document put to paper.

    What has happened is that the poisonous fruit of that decision has been used to other ends. We have had court decisions where judges have tried to convince folks, with a straight face, that NY schools can recognize / observe Eid and Chanukkah since the crescent and star and the menorah aren’t religious symbols.

    With that said, the world needs a little bend in order to work. And the left can be guilty of its own monumentally stupidity. That looks to me like someone trying to get the right result by bad argument though if Christmas was banned that would compound the whole thing. Strictly they shouldn’t and don’t get me wrong, it can go bad like anything else. But looks like arguments round the edges and defining limits than the main show, here.

    All the constitution says is that the Federal government cannot play favorites among the religions. Great on paper, tricky in practice.

    And the only way it can really be done is by the state staying away from it altogether.

  • Greenflag

    Dread Cthulu,

    ‘I’ll start by praying for you punctuation skills’

    I would’nt bother . I don’t pretend to have any . I’ll not be praying for your spelling skills or typo errors 😉

    Anyway the thread title’s subject is that Ted Kennedy did the USA State some service . To judge by his record of legislation in the Senate and the fact that all the still ‘living ‘ USA Presidents will attend his funeral service not to mention the 20,000 who paid their respects yesterday at the Kennedy Library.

    ‘All the constitution says is that the Federal government cannot play favorites among the religions. Great on paper, tricky in practice.’

    Every progressive step in mankind’s long struggle for civil and political rights from magna carta to the present day has been ‘tricky in practice ‘ and has come at a cost in lives , revolutions, religious wars etc. There is always resistance from those who want to maintain the status quo and who are against any changes in law or constitution or monarchical powers .

    That’s why you can write your piece on slugger and why you can vote, and why you have the rights you presently enjoy.

    I’m sure you have read about the warlords in Afghanistan . Your present day still extant monarchs are just the descendants of medieval war lords/thugs -much chastened of course by the ‘behavioural’ constraints imposed on them by those who did’nt allow something that was ‘tricky in practice’ to be defeated by the then status quo !

  • Dread Cthulhu

    Kensei: “I ain’t an atheist. But the positions are not equal. One people are arguing for a neutral environment. The others wish to lift up their religion above others. Only one interferes with others.”

    A neutral environment would treat all points of view equally. Enforcing a ban upon any religious display in the town square does not treat all views equally, but elevates the atheist’s position and desires over others. In a neutral environment, some atheists desire to ban all religious displays would be deemed equally pernicious.

    kensei: “The SCOTUS has to apply the law to a world that is vastly different from the foundation of the Republic. Who could have foreseen digital privacy rights for example? The SCOTUS gets the cases where they have to make decisions and draw lines. It is impossible to avoid interpretation, and naive and is honest to suggest otherwise.”

    Non-responsive — I have already conceded their right to interpret law. What they do not have is a right to interpret the Constitution itself — their powers are defined and limited by that document, so giving them the right to change what it means is inherently unbalancing. If any want the Constitution changed, there is a mechanism to do so.

    Kensei: “Simply because the logic had not been pursued to its obvious conclusion. Slavery existed in the US, civil rights abuses existed, and the Constitution was a wonderful document to force you to correct it once the provisions and ideas where brought further to fruition. It really is the most revolutionary document put to paper.”

    Yes, and it was changed via the Amendment process, not some backdoor semantics game.

    Likewise, you have a fundamental misunderstanding of the Constitution, at least prior to the Reconstruction Amendments. The Constitution only serves to limit the powers of the Federal government and has no impact upon the states, outside of those specific powers that they, the states, yielded to the Federal government.

    Kensei: “With that said, the world needs a little bend in order to work. And the left can be guilty of its own monumentally stupidity. That looks to me like someone trying to get the right result by bad argument though if Christmas was banned that would compound the whole thing. Strictly they shouldn’t and don’t get me wrong, it can go bad like anything else. But looks like arguments round the edges and defining limits than the main show, here.”

    No, Kensei, they aren’t, insofar as if we are not a nation of laws, we become a nation of men, with all the problems, biases and strife that that implies. If the court starts elevating one or more religions at the expense of others through sophistic arguments, then things are perilously close to being a nation of men and not a nation of laws.

  • kensei

    DC

    A neutral environment would treat all points of view equally. Enforcing a ban upon any religious display in the town square does not treat all views equally, but elevates the atheist’s position and desires over others. In a neutral environment, some atheists desire to ban all religious displays would be deemed equally pernicious.

    We are maybe at cross purposes here. Religion should be welcome in the town square. But there shouldn’t be a mural of a crucifix on the square. Or a Star of David, or anything else.

    Non-responsive—I have already conceded their right to interpret law. What they do not have is a right to interpret the Constitution itself—their powers are defined and limited by that document, so giving them the right to change what it means is inherently unbalancing. If any want the Constitution changed, there is a mechanism to do so.

    The world don’t work like that. If the Constituion was written in a computer language, you might have a shot at getting rid of all ambiguity. It wasn’t. So what is the scope, how does it apply, does it really mean this? – are all valid questions. If you view the Constitution as an iceberg, the SCOTUS has to constantly try and see what is underneath. The Constitution is, but you can’t always see all it means if you don’t look. It is naive to suggest otherwise, and playing politics to get what you wnat just as much as the Left can play the same game the other way.

    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.

    A few lines. But incredible force and consequence.

    Yes, and it was changed via the Amendment process, not some backdoor semantics game.

    I don’t recall a civil rights amendment, Dread. It was already in the document. It simply had to be applied.

    Likewise, you have a fundamental misunderstanding of the Constitution, at least prior to the Reconstruction Amendments. The Constitution only serves to limit the powers of the Federal government and has no impact upon the states, outside of those specific powers that they, the states, yielded to the Federal government.

    IRC, most states have constitutions that enshrine similar rights. Second the Constitution carries moral not just legal force. Third, reconstruction was a while ago.

    No, Kensei, they aren’t, insofar as if we are not a nation of laws, we become a nation of men, with all the problems, biases and strife that that implies. If the court starts elevating one or more religions at the expense of others through sophistic arguments, then things are perilously close to being a nation of men and not a nation of laws.

    I don’t think that argument is a good idea. But I can understand why they might have went down that path. As you pointed out, the country had a Pro-protestant bias for a long time that wasn’t strictly Constitutional, but acceptable because of the composition of the country. If people force the logic to its natural conclusion, then you wind up unable to send Christmas cards.

    If you can’t find a way to bend slightly, then you have to legislate for everything. Sounds a lot tougher to me. But strictly right.

  • Dread Cthulhu

    kensei: “I don’t recall a civil rights amendment, Dread. It was already in the document. It simply had to be applied.”

    It was included among the Reconstruction Amendments, and was given additional teeth via the Civil Rights Act of 1964, although, ironically, parts of the 1964 Act would appear to be unconstitutional, as they conflict with the the Reconstruction Amendments (the 14th specifically, iirc) of equal protection. And the Constitution *had* to be Amended to provide civil rights, since the “peculiar institution” was a recognized within the Constitution — the infamous 3/5ths clause, among others, had to be altered via the Amendment process.

    kensei: “IRC, most states have constitutions that enshrine similar rights. Second the Constitution carries moral not just legal force. Third, reconstruction was a while ago.”

    Unfortunately, the SCOTUS has not seen fit to grasp the nettle vis-a-vis the 14th Amendment. For example, the terms of the Fourteenth Amendment and the Civil Rights Act of 1964 conflict — the 14th Amendment guarantees equal protection, whilst the 64 Act countenances affirmative action. While they have had a couple opportunities to address this contradiction, they have opted to skirt the central issue, deciding cases, thus far, that acknowledge the flaw and act in the direction of the Constitution without explicitly invalidating the portion(s) of the 1964 Act that is not in conformity with the Constitution’s strictures.

    Additionally, the Reconstruction Amendments would seem to extended the strictures of the Bill of Rights to the states, but, again, the Courts have skirted that issue as well… Just because the Amendments are old doesn’t mean the courts have had the stomach to make them settled law.

    kensei: “As you pointed out, the country had a Pro-protestant bias for a long time that wasn’t strictly Constitutional, but acceptable because of the composition of the country. If people force the logic to its natural conclusion, then you wind up unable to send Christmas cards.”

    And that is the part you don’t grasp. It *WAS* Constitutional. The state religions in the several states were, in some cases, enshrined in their own state constitutions and did not conflict with the Bill of Rights since the Bill of Rights is a list of things the FEDERAL government may not do and, until the 14th Amendment, had no power over the several states. This is why the question of the 14th Amendment’s possible extension of the Bill of Rights to the states becomes important. While the question of a state having a state religion is academic these days (save, perhaps, for Utah…), this question has other ramifications in the areas of firearms ownership, free speech and other fundamental rights. For example, if we are guaranteed equal protection under the law, how does that impact the “community standards” doctrine on speech? Under “community standards,” speech that is obscene in, say, Cleveland or Peoria is merely titillating in Los Angeles or New York City.

    The Constitution has to have an unwavering meaning and not simply mean what some politician’s pet philosopher or linguist can make it say.

  • kensei

    DC

    It was included among the Reconstruction Amendments, and was given additional teeth via the Civil Rights Act of 1964, although, ironically, parts of the 1964 Act would appear to be unconstitutional, as they conflict with the the Reconstruction Amendments (the 14th specifically, iirc) of equal protection. And the Constitution *had* to be Amended to provide civil rights, since the “peculiar institution” was a recognized within the Constitution—the infamous 3/5ths clause, among others, had to be altered via the Amendment process.

    Which is a hundred year gap. How the Constitution was interpretated changed which enabled things like Brown versus the Board of education. Which brings us back to the original point. The SCOTUS doesn’t live in a static world, hence it cannot be static.

    Unfortunately, the SCOTUS has not seen fit to grasp the nettle vis-a-vis the 14th Amendment. For example, the terms of the Fourteenth Amendment and the Civil Rights Act of 1964 conflict—the 14th Amendment guarantees equal protection, whilst the 64 Act countenances affirmative action. While they have had a couple opportunities to address this contradiction, they have opted to skirt the central issue, deciding cases, thus far, that acknowledge the flaw and act in the direction of the Constitution without explicitly invalidating the portion(s) of the 1964 Act that is not in conformity with the Constitution’s strictures.

    I’d guess they have simply kept rulings as narrow as need be. We also need to consider the de facto reality and not simply the de jure. Suppose a state flat out banned public speaking except government statements. Regardless of the current legal position, what do you reckon would happen?

    Additionally, the Reconstruction Amendments would seem to extended the strictures of the Bill of Rights to the states, but, again, the Courts have skirted that issue as well… Just because the Amendments are old doesn’t mean the courts have had the stomach to make them settled law.

    “Would seem to…”? You mean they might be open for debate or.. different interpretation…? :O

    And that is the part you don’t grasp. It *WAS* Constitutional. The state religions in the several states were, in some cases, enshrined in their own state constitutions and did not conflict with the Bill of Rights since the Bill of Rights is a list of things the FEDERAL government may not do and, until the 14th Amendment, had no power over the several states. This is why the question of the 14th Amendment’s possible extension of the Bill of Rights to the states becomes important. While the question of a state having a state religion is academic these days (save, perhaps, for Utah…), this question has other ramifications in the areas of firearms ownership, free speech and other fundamental rights. For example, if we are guaranteed equal protection under the law, how does that impact the “community standards” doctrine on speech? Under “community standards,” speech that is obscene in, say, Cleveland or Peoria is merely titillating in Los Angeles or New York City.

    There are a number of semantic ways around that. I’d not worry too much. I would also doubt the establishment of any religion in a state could stand Constitutional muster today.

    The Constitution has to have an unwavering meaning and not simply mean what some politician’s pet philosopher or linguist can make it say.

    It’s an impossible standard. There is no perfect objective standard. Tell people the Bible is the Word of God and you have ten thousand sects arguing over what is actually meant. The courts like the legislature can make mistakes. They can also learn and get deeper understanding. Be faced with new situations they never expected and have to apply their principles to. It’s populated by people, what else do you expect.

    I have no problem striving towards a more perfect understanding. But it’s not possible to ever reach it. The SCOTUS should be generally conservative in the truest sense of the world. But even conservative doesn’t mean static.