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Author Topic: You shall have no king but Caesar
Pete at Home
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quote:
The fourth moral error of political conservatism is Caesarism. According to this notion the laws of man are higher than the laws of God; according to Christianity the laws of God are higher than the laws of man. With this error we have come back to secular conservatives. The peculiar thing about American Caesarism is that the state never says that its laws are higher than the laws of God; it simply refuses to acknowledge any laws of God, in the name of equal liberty for all religious sects.

George Reynolds, a Mormon living in Utah Territory, was charged during the 1870s with the crime of bigamy. In his defense he argued that the law was an unconstitutional infringement of his free exercise of religion. Accepting his appeal, the Supreme Court disagreed. Although it said all sorts of interesting things about why free exercise of religion is good (and why polygamy is wrong-for instance because it leads to a patriarchal rather than republican principle of authority in government), the heart of the rebuttal was a simple distinction between opinions and actions. Appealing to Thomas Jefferson's idea of a "wall of separation between church and state," it held that what people believe is the business of the church, but that what they do is the business of the state. Therefore, the First Amendment does not mean that people may act as their religion requires, but only that they may think as their religion requires; free exercise of religion makes no difference whatsoever to the scope of state power over conduct.

Still favored by many conservatives, this doctrine has startling implications. It means, for instance, that in throwing Christians to the lions for refusing to worship Caesar, the Romans did nothing to infringe the free exercise of Christianity; after all, while being devoured, the martyrs were still at liberty to believe that Caesar was only a man.

A century later, in cases involving other religious groups, the Court conceded the point. Announcing its discovery that faith and conduct cannot be isolated in "logic-tight compartments," it now decreed that "only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion." But this was too much for judicial conservatives, and the experiment was ended in 1992. Writing for the Court in Employment Division v. Smith (II), Justice Scalia appealed to the notion that the issue in free exercise cases is not whether the state's motives are "compelling," but whether they are "neutral." A law that does not expressly single out a particular sect may burden any religious practice to any degree, so long as this burden is "merely the incidental effect" of the law and not its "object." In other words, repression is fine so long as it is absentminded. Pastoral care and counselling could not be forbidden as such but could be forbidden as an incidental effect of regulations for the licensing of mental health practitioners; the sacrament of baptism could not be forbidden as such but could be forbidden as an incidental effect of regulations for bathing in public places. To be sure, since the recent action of the Court, Congress has reinstated the compelling-interest doctrine, lauding its deed as a "Religious Freedom Restoration Act." But surely this is overstatement. After all, even under the compelling-interest doctrine, claims to the free exercise of religion can be swept aside whenever the state thinks its reasons are good enough. So much we would have had without a First Amendment.

As our own times have made clear, even releasing nerve gas in public places can be an exercise of religion. Perhaps the blame for our troubles lies with the Framers, for refusing to distinguish the kinds of religion whose exercise should be free from the kinds of religion whose exercise should not. But, foolishly thinking ignorance a friend of conscience, we have followed their lead. Afraid to judge among religions, we put them all beneath our feet; pursuing the will-o'-the- wisp of equal liberty, we tumble headlong into Caesarism.


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FiredrakeRAGE
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Pete at Home -

Interesting. With regard to distinguishing between the kinds of religion which we can exercise, I would say that we should draw the same line we have for the exercise of free speech. If the exercise of religion does not present a clear danger, it should be outside the reach of the government.

We should, however, make a point of not allowing the government to take part in religion.

--Firedrake

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witless chum
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I think an important part, as with speech, would be no prior restraint. The burden would be heavily on the government to prove that Pete can't practice his religion, not on Pete to prove his religion wasn't a clear danger.

Before anyone gets to excited about agreeing with this, it is an argument for Christian Identity, liberation theology, Scientology, the Native American Church and Jihadism to all be allowed equality with Catholicism, Methodism, Mormonism and Judaism.

Probably not Christian Science, though.

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WarrsawPact
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Here's my argument: YRTSYFEAMN.
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Pete at Home
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WP, I'm assuming your obscurity was intentional?

@WC:
Rome says, "you can believe what you want, but if you pass around the seditious story that someone who the Roman empire crucified, has come back from the dead, then you shall be fed to the lions."

Rome argues: "The terror of crucifixion maintains order in the empire. If we start letting people think that crucifixion is less than 100% effective, then crucifixion loses its deterrent power, and Rome falls to vandals and barbarians."

As a Christian, what do I have to prove under your interpretation of the 1st amendment to not get fed to the lions?

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FiredrakeRAGE
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Pete -

YRTSYFEAMN is hardly obscure.

--Firedrake

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Adam Masterman
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Well, it's obscure if you haven't ever heard it.

For the "uninitiated", it means:

Your Right To Swing Your Fist Ends At My Nose,

a simple exposition of libertarian legal ideals. As a practical matter, its useless, basically because its so obvious. Its also impossible to meaningfully quantify. A liberal would consider less availability of emergency health care his "nose", and thus would require you to wear a seat belt. Most libertarians would balk at this. In an interdependant world, there isn't any room between one's fist and anothers nose. It only works if we pretend that there is. IMO, anyway.

Adam

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velcro
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Completely irrelevant, but FireDrakeRAGE-

Obviously Pete did not know the acronym. You took the time to post a chastisement, but not to educate. I think that taking small steps towards civility makes this a better site, and would ask that you keep that in mind when you post.

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Adam Lassek
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quote:
A liberal would consider less availability of emergency health care his "nose", and thus would require you to wear a seat belt.
Liberals, on the other hand, tend to take it to the opposite extreme. They create the interdependancy you speak of in order to make people's lives better, and then use this as an excuse to take more control over people's lives. Protecting people from themselves necessarily denies them their freedom.

On the subject of seat belts, I read a really good article on this recently.

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FiredrakeRAGE
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Adam Lassek said:
quote:
They create the interdependancy you speak of in order to make people's lives better, and then use this as an excuse to take more control over people's lives.
That has to be the best single-sentence description I've ever heard.

--Firedrake

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FiredrakeRAGE
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The major issue with arguing against seat-belt laws is simply that they make sense. It is hard to get across that seat-belts are a good thing, but legislation forcing them on car manufacturers and drivers is a bad thing.

Most people I've spoken with seem to think that any good thing will also make a good piece of legislation.

--Firedrake

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WarrsawPact
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Adam -

quote:
[YRTSYFEAMN is] a simple exposition of libertarian legal ideals.
It's an exposition of maximized negative rights, and it's been specifically drawn out in the Supreme Court (Justice Oliver Wendell Holmes said, "The right to swing my fist ends where your nose begins"). It's basically a Lockean idea -- freedom, but not license.

quote:
As a practical matter, its useless, basically because its so obvious.
You would be surprised. I said those very words and defended that principle in several of my college classes and absolutely stunned other students and even the professors. It's a very effective illustration of maximized negative rights -- and I believe the Constitution is built around such rights.

quote:
Its also impossible to meaningfully quantify.
I disagree. Let's look at your examples.
quote:
A liberal would consider less availability of emergency health care his "nose", and thus would require you to wear a seat belt.
Another helpful acronym would be TANSTAAFL -- there ain't no such thing as a free lunch. Availability of emergency health care isn't a negative right -- it is a privilege. It requires taking something from someone (or someone giving something away) to establish it.

quote:
Most libertarians would balk at this. In an interdependant world, there isn't any room between one's fist and anothers nose. It only works if we pretend that there is. IMO, anyway.
Of course, I disagree. I can take many actions without doing real harm, especially not the kind of harm that can be tracked back to me and then be used to hold me accountable. If I do something that so indirectly causes someone harm that it would be fruitless to punish me for it (what lesson am I going to learn? What example is being made for society to look at?), I haven't infringed upon anyone's negative rights. The butterfly that flaps its wings and 'causes' the hurricane halfway around the world is for all intents and purposes blameless.
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WarrsawPact
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Firedrake -
quote:
Most people I've spoken with seem to think that any good thing will also make a good piece of legislation.
Isn't it sad when people try to make everything that isn't prohibited compulsory?
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pickled shuttlecock
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Crap. I passed the drinking age. Now I have to go to a bar and get drunk. I'm glad I don't live in Nevada, because I'd also have to pay for and take home a prostitute.

Or did you really not mean "everything?" [Big Grin]

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WarrsawPact
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I mean everything. That it's not codified yet for this or for that doesn't change the trend.

It's not enough for many people that you're be free to be good. You mustn't be merely "not bad." You must be good.
It's a little urge the masses get when they have time on their hands.

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Ivan
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WP-
quote:
I can take many actions without doing real harm, especially not the kind of harm that can be tracked back to me and then be used to hold me accountable. If I do something that so indirectly causes someone harm that it would be fruitless to punish me for it (what lesson am I going to learn? What example is being made for society to look at?), I haven't infringed upon anyone's negative rights. The butterfly that flaps its wings and 'causes' the hurricane halfway around the world is for all intents and purposes blameless.
And I was with you up to this point. [Smile]

The biggest problem I have with this arguement is the degree to which you can take "meaningful actions" that do not effect others. Basically, you can interact with your private property (although that's begging the question of acquisition, which is another can of worms) and with other individuals who have chosen to interact with you, but beyond that, other meaningful interactions can be viewed as an infringment on negative rights.

For instance, I claim a right to "peace and quiet". Basically, people arn't allowed to surround my domicile with huge speakers and crank the music up loud when I'm trying to sleep. But that's only an extreme example. What about the person who is driving by on the road next to my house? Surly they have a right to drive their car on the newly-built public roadway. Can I claim some recompence from the government for the noise polution this has caused? Can I blaim the driver? Continuing to the other extreme, what right do we have to make noise when someone else may here it and be adversely effected? Where, exactly, does their noise (ears?) begin?

Moreover, your arguement of butterfly effect only works as long as the butterfly is ignorant. Once we inform the butterfly that their wings flapping will trigger an unstopable chain of events leading to massive destruction we are able to hold the creature responsible for its actions. The butterfly is only blameless when they are ignorant, or more accurately, unable to see the causal link between their actions and the outcome. So once I tell the driver that they're keeping me up, shouldn't I be able to get some type of compensation for beening woken up regularly?

edited to attribute quote

[ November 14, 2005, 09:33 AM: Message edited by: Ivan ]

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Adam Masterman
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quote:
I can take many actions without doing real harm, especially not the kind of harm that can be tracked back to me and then be used to hold me accountable. If I do something that so indirectly causes someone harm that it would be fruitless to punish me for it (what lesson am I going to learn? What example is being made for society to look at?), I haven't infringed upon anyone's negative rights. The butterfly that flaps its wings and 'causes' the hurricane halfway around the world is for all intents and purposes blameless.
Well, you just confirmed exactly what I said. ( [Confused] ). The idea of YRTSYFEAMN requires that we ignore a large part of interdependance, and you countered by explaining exactly which aspects you choose to ignore. Great.

I understand why you don't consider it necessary to account for the consequences of "minor" or unintentional actions, but it is a line that you are drawing. In the ontological sense, there is almost no action we can take that does not effect another, and this is the insight of much of both modern physics and modern philosophy. YRTSYFEAMN is based on the premodern assumption that people could basically just leave each other alone. Its modern incarnation either acknowledges the impossibility of this, and articulates which actions should be governed according to the philosophy, or ignores this obvious fact (hence "pretending"). Your exposition seems to do the former, but just because you can pragmatically draw a line doesn't mean that it exists independant of your opinion. That was my point.

Adam

[ November 14, 2005, 09:58 AM: Message edited by: Adam Masterman ]

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Ivan
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One thing that both delights and annoys me about this forum is that I can post something and then come back 10 minutes later to find that my point has been better articulated by someone else. [Smile]
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Adam Masterman
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[Embarrassed]

awwww, shucks.

Adam

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WarrsawPact
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quote:
The butterfly that flaps its wings and 'causes' the hurricane halfway around the world is for all intents and purposes blameless.

And I was with you up to this point.

Why? Do you think the butterfly should be tracked down and punished? If you can't conceivably see the Rube Goldberg machinations that will cause your essentially harmless action to snowball into some harmful event, what use is it to society for you to be punished?

quote:
The biggest problem I have with this arguement is the degree to which you can take "meaningful actions" that do not effect others. Basically, you can interact with your private property (although that's begging the question of acquisition, which is another can of worms) and with other individuals who have chosen to interact with you, but beyond that, other meaningful interactions can be viewed as an infringment on negative rights.
Many people interact every day without meaning to run into that other person, but do not do harm, and so do not infringe upon anyone's rights.

quote:
For instance, I claim a right to "peace and quiet"
Really? That's great. If you can get others to defend that right, by all means go ahead.

But if you walk out in public and think that your "right" to peace and quiet is a negative right, you're kidding yourself. Peace and quiet are privileges, things you can strive to attain but which are not guaranteed to you. You have a guarantee to the pursuit of happiness, not the attainment of it.

If you can prove, on the other hand, that the noise is doing you real harm (to an extreme example: are your ears bleeding?), then you can take it up with the perpetrator.
Some communities allow a certain level of noise before it is determined that harm is being done -- "disturbing the peace" or what-have-you. But that does not mean you have a maximizable right to peace and quiet.

The line is never clean and precise -- how many decibles from whatever distance, what pitch and how much bass, etc. That's the law for you. But it is a general principle that maximizes each party's freedom of action.

quote:
Moreover, your arguement of butterfly effect only works as long as the butterfly is ignorant.
That's correct. I never implied otherwise.
In fact, I'm all for accountability whenever it is reasonable for the "flapper" to know what effects they might be causing. Many types of crimes-without-(full?)-intent are punishable by law.

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Pete at Home
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Well, after the last few months of hurricanes, the world policeman's going to have to start interrogating a lot of butterfly suspects. Do you have any leads, WP?
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WarrsawPact
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quote:
Well, you just confirmed exactly what I said. ( [Confused] ). The idea of YRTSYFEAMN requires that we ignore a large part of interdependance, and you countered by explaining exactly which aspects you choose to ignore. Great.

I understand why you don't consider it necessary to account for the consequences of "minor" or unintentional actions, but it is a line that you are drawing. In the ontological sense, there is almost no action we can take that does not effect another, and this is the insight of much of both modern physics and modern philosophy. YRTSYFEAMN is based on the premodern assumption that people could basically just leave each other alone. Its modern incarnation either acknowledges the impossibility of this, and articulates which actions should be governed according to the philosophy, or ignores this obvious fact (hence "pretending"). Your exposition seems to do the former, but just because you can pragmatically draw a line doesn't mean that it exists independant of your opinion. That was my point.

YRTSYFEAMN is not based on any such presumption. It's a method for running society that maximizes individual liberty -- and thus, I believe, opportunity.

And a society that would try to punish things for which it cannot relaibly find the root causes would be ridiculous. We punish individuals and firms that cause harm and should know better, and we make examples out of them. The purpose of a practical Justice System in any society is not to punish even the tiniest iniquity but to make society function more smoothly.

Rights are made by man and enforced by man, and are only as strong as their enforcement.

So of course it's a practical -- not an absolutist -- doctrine. What else would you expect from me?

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WarrsawPact
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Pete -

I dunno, but I suspect that they were created by terrorists in clandestine labs. We should immediately begin study of butterfly populations in Iran, Syria, North Korea, and Venezuela.

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Adam Masterman
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quote:
YRTSYFEAMN is not based on any such presumption.
Uh, yes it is. That statement is based on the premise that there is some zone of action where someone can act without effecting others. Otherwise, it would be absurd to define where such a zone ends (anothers nose). To put it another way:

If the statement did not have the presumption that there are some actions which do not effect others, it would be meaningless. It would be synonymous with the statement "you have no right to swing your fist." So which is it, presumption or absurdity?

Adam

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WarrsawPact
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It's neither. The idea behind YRTSYFEAMN is not that you can act without affecting others, it's that there is a wide range of action you can perform without harming others (it's a fist, remember). An even smaller range of actions are those in which you should know better. Society punishes people for verifiably being at fault for harming others.

[ November 15, 2005, 03:40 PM: Message edited by: WarrsawPact ]

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Adam Masterman
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quote:
It's neither. The idea behind YRTSYFEAMN is not that you can act without affecting others, it's that there is a wide range of action you can perform without harming others (it's a fist, remember).
Intentional harm, you mean, right? Or, rather, verifiable harm, I think you said. See, this is why I said that the idea alone was functionally useless: it has to be endlessly qualified. ANY action could cause harm, sometimes great harm. We have all seen movies where someone carelessly litters out the car window and it causes a massive accident. These kinds of things can potentially happen all the time, with the most innocuous actions, and without intent, like the butterfly's wing. So we have to qualify YRTSYFEAMN by saying we are only talking about "intentional" or "verifiable" harms. And these terms, aside from needing to be very clearly defined to know exactly what a libertarian means by them, also need to be qualified. An arson may have no intention at all of killing people, yet we all agree that he has murdered if someone dies in the building he burns down. Likewise, the master criminal may leave no trace of his crime, making it completely unverifiable (and thus not a crime?).

Saying YRTSYFEAMN is like saying "we should make a good society": pretty much any governing philosophy will agree in principle, so it tells us nothing about any philosophy. One needs to see how a particular philosophy interprets it to understand that school of thought.

Understand that I'm not even criticising Libertarianism. Its wrong, but thats fine ( [Wink] ). What I m saying is that its not the axion YRTSYFEAMN that makes Libertarianism, its their interpretation of that axiom. Furthermore, I think the axiom itself is sort of useless because it requires so much interpretation. On its face it presents a simple, premodern reality where if we all respect each other's space everything will be groovy. Every practical application of this theory that I have seen (including yours) compensates for this naivity. I am left wondering why work from such a naive axiom in the first place.

Adam

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Joe Schmoe
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quote:

It means, for instance, that in throwing Christians to the lions for refusing to worship Caesar, the Romans did nothing to infringe the free exercise of Christianity; after all, while being devoured, the martyrs were still at liberty to believe that Caesar was only a man.

I guess that explains what happened to the mormons? This is a scary concept. Why is everyone talking about YRTSYFEAMN instead of the topic?
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Pete at Home
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Thanks, Joe. I think they find it safer.
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Joe Schmoe
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Hey Pete, maybe its not so much that its safer but that they really don't know much about the case. I know thats certainly true for me.

Wheres the original text of that quote you posted? Also any other relevant links would be great. I'd like to look into it a bit more. I find it astonishing that religious people let that slide through the supreme court without more of a fight. Maybe with more information on it people will feel better about commenting.

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Pete at Home
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Thanks, Joe. The site is Orthodoxy.org (I think a Greek Orthodox site), and the case is Reynolds v. US. I posted the parts of the article that related to Caesarism; the rest wasn't quite as interesting to me.

The Problem With Conservatism, by J. Budziszewski:
http://orthodoxytoday.org/articles/BudziszewskiConservativism.php

[ November 16, 2005, 02:04 PM: Message edited by: Pete at Home ]

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WarrsawPact
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The reason I brought YRTSYFEAMN int othis in the first place is that it allows for the free exercise of religion so long as it doesn't verifiably harm anyone, and disallows the suppression of religion unless said line is crossed. It nullifies that Romans-not-really-suppressing-Christianity bit in one fell swoop. Releasing nerve gas as an expression of religion goes out the window.

"Compelling interest," then, is also pretty much out the door.

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Adam Masterman
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quote:
I think they find it safer.
Warrsaw, I think we have been officially rebuked. In my own defense, I got on this topic by coming to the defense of the topic starter, though all subsequent discussion can be blamed on my fear of the topic of church and state. [Smile]

Adam

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Pete at Home
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[Big Grin] Sorry, Adam. That wasn't supposed to be a rebuke; it was a dare. you know, "safer"? You're supposed to respond "i'll show you safe" and launch into something really foolhardy. [Big Grin]
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WarrsawPact
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quote:
Intentional harm, you mean, right? Or, rather, verifiable harm, I think you said. See, this is why I said that the idea alone was functionally useless: it has to be endlessly qualified.
Look at this logically.

If you can't verify harm has done, it's not going to pass the courts anyway. That's supposed to be just plain common sense.

And we punish intentional harm as well as many types of unintentional harm, generally punishing intentional harm much more than unintentional. We're obviously seeking an end in all this, and our Justice System fulfills its purpose when it makes an example of what people should not do. Swinging your fist until it unintentionally hits someone's nose, when you should have known better, gets you punished too.

quote:
ANY action could cause harm, sometimes great harm.
Yet we only punish the ones which we can verify and which the actor should have known better than to perform. A butterfly that just happens to set off a hurricane with a flap of its wings is -- and listen carefully -- for all intents and purposes blameless. That doesn't mean he's not at fault. It means that it's impractical and foolish to (a) track down the original source of the flapped wings, and (b) punish the butterfly when other butterflies have no firggin' clue how to prevent the same thing from happening when all they want to do is fly.

quote:
So we have to qualify YRTSYFEAMN by saying we are only talking about "intentional" or "verifiable" harms.
As for intentional -- that's wrong. I keep saying, over and over again, that we punish crimes-without-intent like manslaughter all the time. But only those in which someone should have known better than to be doing something that is pretty obviously hazardous. If a contruction worker backs up his truck and fails to check his mirrors adequately, and ends up running over another worker, he's in serious trouble. Not because he meant to hurt or kill the guy he ran over, but because he should have known better than to do something that was obviously an unsafe practice.
Same goes for your arsonist example. I mean, this is elementary stuff; the few obvious qualifications should go without saying.

As for verifiable -- well, if the court can't prove that someone was responsible, no one can be punished. And since rights are made by man and enforced by man, that makes "verifiable" an obvious qualification too. What are we going to do, start punishing unverifiable crimes? Guilty until proven innocent?
Should we just assume that all criminals are your "master criminals"?

It's not a naive axiom at all, and it's been repeated many times in similar forms by philosophers and Supreme Court Justices. The qualifications are obvious, not complex or unending. It doesn't even require much interpretation -- just application.

And in the meantime, no, many people do not agree with YRTSYFEAMN in principle! One only has to look to every government (and religion, for that matter -- Christianity won't even let you swing your fist that far) currently operating in the world to see that this is true. It is a decidedly neo-Western, Enlightenment attitude that favors what some call "radical individualism."

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WarrsawPact
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quote:
"I think they find it safer. "

"Warrsaw, I think we have been officially rebuked."

I don't think so. YRTSYFEAMN is nothing if not extremely topical here. It's about liberty of action until harm is done, not just about letting people believe what they want to believe. Being simply free to believe what you want is not a privilege -- you have that ability naturally and it takes a fantastic degree of effort to infringe upon that. Freedom is in the action.
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Pete at Home
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I agree it would be extremely topical, if you could make an effort to clearly relate it to the topic, and showed how YRTSYFEAMN speficically applies the free exercise sense. I'm interested.
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WarrsawPact
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Well, when in your original post this was mentioned:
quote:
Therefore, the First Amendment does not mean that people may act as their religion requires, but only that they may think as their religion requires; free exercise of religion makes no difference whatsoever to the scope of state power over conduct.

Still favored by many conservatives, this doctrine has startling implications. It means, for instance, that in throwing Christians to the lions for refusing to worship Caesar, the Romans did nothing to infringe the free exercise of Christianity; after all, while being devoured, the martyrs were still at liberty to believe that Caesar was only a man.

I think that government-conservatives today have another doctrine entirely. That doctrine is, in many related forms, YRTSYFEAMN.

The martyrs being at liberty to believe whatever they wanted to believe is the natural state of things, and any attempt to pass off protections of the free exercise of religion in the US today as such is very short-sighted. The Constitution protects and punishes conduct, not thought. And when it says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," there's no defense for the doctrine that the exercise of religion is limited to the mind.

Jefferson, similarly, did not want to erect a firm "wall of separation between church and state" just so that government would be prevented from somehow changing your thoughts. That's baloney.

In fact, the whole doctrine the article mentions is baloney. There's a simple solution that doesn't require any discrimination, any appeal for "neutrality," or any "compelling interest."

When they say:
quote:
After all, even under the compelling-interest doctrine, claims to the free exercise of religion can be swept aside whenever the state thinks its reasons are good enough.
... my response is this: The state's "compelling interest" is to prevent or punish any party in the world from harming a party within our state. So until the free exercise of religion crosses that barrier, it's protected. Period.

YRTSYFEAMN is the natural, practically definitional restriction on every negative right in the Constitution, and the basis for them all so far as I can see.

That's why it was my response to the article. There's no need to dance around with all these fancy doctrines. Releasing nerve gas in public is indeed free exercise of a twisted religious doctrine. No need to pass a law restricting any exercise of religion. The ones against harm, pure and simple, are enough to restrict any harmful exercise of religion.

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Paladine
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So you think that the Supreme Court should be able to strike down as Unconstitutional any law that prohibits action that prohibits an action that doesn't violate your YRTSYFEAMN, even if said law doesn't conflict with any passage of the Constitution? I hope not. [Frown]
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Pete at Home
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WP, what about a Catholic Priest giving communion wine to a minor. Law says an adult that gives alcohol to a minor is a criminal, and doesn't make a religious exemption. (Extremists like PFAW would argue that a religious exemption would violate the establishment clause anyway.) State says there's a harm, since if you allow one religion to give psychoactive drugs to minors, you've got to let them all do it, etc. Shows arguable abstract harm to society in general. How do you rule, and is it really that simple of a test?

(I think you're on the right track, BTW, with harm. I just don't think it's quite as simple; it's a fancier doctrine than you let on.)

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WarrsawPact
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Paladine -
quote:
So you think that the Supreme Court should be able to strike down as Unconstitutional any law that prohibits action that prohibits an action that doesn't violate your YRTSYFEAMN, even if said law doesn't conflict with any passage of the Constitution?
Let me break that sentence down.

You're asking me if I think that the Supreme Court...
should be able to strike down any law that prohibits unharmful behavior...
even if the law somehow doesn't conflict with the Constitution.

Well, I see the Constitution as (to use a metaphor I picked up recently) a sea of negative rights with islands of government power, especially given the Ninth Amendment. So harmless behaviors should not be prohibited.

quote:
I hope not. [Frown]
Why? You like laws that prohibit harmless behavior, just for the hell of it?
-=-=-=-=-=-
quote:
WP, what about a Catholic Priest giving communion wine to a minor. Law says an adult that gives alcohol to a minor is a criminal, and doesn't make a religious exemption.
Be more specific about which law we're talking about. I do believe this is a state-by-state regime. For example, I looked up statues in NY regarding minors and alcohol.

Check it out. Note exceptions for "appropriateness" and the presence of a parent, guardian, or "authorized adult."

I think, regardless of who passed those laws, that harm can't take place in the context of Communion. Firstly, at Communion, imbibing of the Blood of Christ is entirely optional, and most people pass it up. Those who choose to imbibe the wine are consenting to do so, and I don't see how the state can claim harm is done simply by making such weak alcohol (it's 2 proof! and all you get is a small sip) available to minors. You couldn't poison a parakeet with the amount of alcohol available at Communion.

Secondly, I had the understanding that parents could perfectly legally provide alcohol to their children so long as they did not cross over into child endangerment.

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