Is It Constitutional?
Richard Layton’s Discussion Group Report
Sometimes questions arise about the constitutionality of laws. This month the Discussion Group read the U.S. Constitution and discussed it. Below are some of the questions raised and the exact words in the document that pertain to them, followed by brief commentary. You may have your own opinion about what the Constitution means with regard to some of them.
Gun control: Amendment II: “A well-regulated Militia being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” Some believe this provision guarantees the right of people to keep and use any arms without any restrictions. Others believe it allows the government to put restrictions on the ownership and use of arms to protect the citizenry from murder and injury. These latter argue that the opening phrase in the provision states that the purpose of the right to bear arms is to provide for a Militia and does not give people the absolute right to own arms for other purposes. The opening paragraph of the Constitution, they point out, says that one of the purposes of the constitution is to “promote the general Welfare.” If restricting the ownership and use of guns helps prevent crime, then this promotes the general Welfare. The former say the framers did not intend to restrict the right to bear arms to use for the Militia. The reference to the Militia is a mere statement that a Militia is necessary, but it was not intended to confine the right. Recently I heard a constitutional scholar say that, at the time of the writing of the Constitution, the term Militia was commonly used to refer to the military.
Search and seizure: Amendment IV: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall be issued, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Commentators have expressed concern that some provisions in the Patriot Act, enacted following 9/11, infringe on people’s constitutional right to privacy. I have heard it contended that the law gives police the right to search a suspect’s house without obtaining a judge’s order and without notifying the suspect that his house has been searched. Previous to the enactment of this act the judge’s order and notification to the suspect were required. So far I know of no one who has actually taken legal action to contest the Act. Its constitutionality can be contested legally only through such action.
Treatment of Prisoners: Amendment V: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger…” Also, Amendment VI. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” There is controversy over the detainment of prisoners suspected of terrorist crimes and the detainment of prisoners at Guantanamo Bay. In the case of some of the former, they were detained for an unusually long time before being informed of the charges and before being allowed attorneys. In the case of the latter, the Bush administration has classified them as “enemy combatants” and apparently intends to hold them indefinitely. Does the constitution allow these treatments? Or is this a question that more properly should be considered as relating to the Geneva Convention?
The Solstice celebration, or the Christmas festival, is the richest of our human traditions, bringing a great store of human treasures down through many centuries and many lands. Much of the stuff and the decorations we surround ourselves with that seem so necessary are an ancient weave of myth and fancy and belong to the realm of imagination. It is now well accepted that some of the greatest values of life DO belong to this realm, and they are rightfully there to nourish our need for tradition, pageantry, and jubilation, not to mention anticipation, surprise, singing, color, and tempting aromas. We mostly keep separate the realms of magic and myth from fact, but, after all this time, it is practically in our nature to have an absolutely divine Christmas.
Some of our Christmas treasures produce a deep satisfaction we are scarcely conscious of. The holly, the evergreen, and mistletoe speak of a time long ago when the earth would die back and humans cherished the few remaining plants. Despite the perishing cold, these retained their green. It was comforting proof that life would survive, would grow again. The Yule log, too, suggests a time long before the birth of Jesus when humans were poignantly aware of their dependence on light as the days grew ever darker and shorter, threatening to kill the sun altogether. Then, fire kindled warmth and comfort, and was also thought by early people to help the sun gain back strength. In these symbols–the evergreen and fire light–we share fellowship with untold generations who have had a vivid awareness of our dependence on the great order of nature.
Also at the core of the solstice and Christmas festivals is one of our most sacred but commonly occurring realities, which is also probably the supreme mystery–the miracle of birth and parenthood. Although the special sacredness of the family predates the birth of Jesus, it is unimaginable that an event of such significance would not be clothed in religion. But the value of the Christmas pageant and the gospel stories lies not in the recital of the birth of one, marvelous child, but in the timeless, shared experience of all parents, rendered almost helpless by the awe and tender love for their child, who wish and dream for its future. It is a time when the whole, exalted world kneels before the cradle. The stories of the birth of Jesus are part of the poetry of Christmas, not history, but expressions of reverence Jesus inspired in his early followers. As poetry, they express an inherent sacredness of family, of nurturing, of giving, of doing all we can to prepare our offspring for life.
And alas, Christmas is not always a time of joy, and these symbols of life and family may instead call to mind days that are gone, and gone with them, other scenes and other faces. It is a time when laughter and tears are commingled in timelessness. It is a time of re-awakening, when the idealism of the human heart comes to the foreground of consciousness, and we are stirred by the qualities of human nature in which our chief hopes lie–the impulse of forgiveness, kindness, generosity, and the urge to join in fellowship with our kind. It is a time when we yearn to throw all the power of our lives onto the side of wholeness, happiness, joy to loved ones, to neighbors, and even strangers spanning great distances, whose hearts may be beating with the same, sweet impulse. It is a realization that, despite all that is wrong with the world, there is, through human effort, still hope of redemption, still hope of reaching out to embrace others, in peace. That peace, which is so illusive, may yet be achieved, there to be grasped–maybe not in our own lifetime, but possibly in our children’s. Could any gift be a greater treasure than that?
President Humanists of Utah
Once upon a time there was a young woman who moved to Salt Lake City from Denver. She was the product of a mixed marriage–a Mormon mother and Episcopalian father–but her grandparents remained true to their own religion, so she was raised Mormon, Episcopalian, Congregationalist( because her parents joined after their marriage), and Presbyterian (in-laws). No wonder she was a humanist from junior high on–and she and her husband became Unitarians soon after their marriage.
On her first day of teaching, she started to pour a cup of coffee during lunch in the faculty room, but was told very sternly by the coach that no coffee was permitted in the faculty room.
Just after Thanksgiving, the principal told her to prepare her choruses for a Christmas presentation at the local Stake house. The usual dilemma arose: she knew about the separation of church and state and felt very strongly–but needed the job and as a first year teacher needed to be sure she didn’t offend. Ho Ho Ho, what to do? With the help of student leaders the music was selected to reflect many countries and cultures. Lots of practice and the choruses were ready.
On the evening of the big event, the principal told her she would be expected to deliver a talk, too! After a momentary panic, she had the groups perform all the music, and then stood up to deliver her talk. She discussed the origins of the pieces and the cultural background, and then concluded her remarks by saying, “Isn’t it a miracle that the birth of a tiny baby resulted in such glorious music throughout the world?”
Afterwards the principal walked up and said, “Thank goodness–I thought you were never going to mention Jesus.” I never did tell him that I didn’t!
P.S. The day after the coffee incident, I was told that fresh coffee was brewed each noon in the home economics room.
Not only photographed but “there were always stories to tell after I photographed these people,” Rolf says. He rarely asks his subjects for autographs; the photos are enough. He did want an autograph of Gorbachev, however, but “didn’t have any paper with me for him to write on. All I had was a twenty-dollar bill, which I gave to his wife so she could hand it to Gorbachev to sign.” Then he realized he had no pen, but Raisa “got the message and started reaching in some men’s coat pockets until she found a pen and then handed them both to her husband. He pointed to the signature of the Treasurer of the United States and said something to his interpreter.” The interpreter turned to Rolf and said, “Mr. Gorbachev said that this bill has already been autographed.” They all smiled and Rolf got the autograph.
Such stories are vintage Rolf. He tells another one of photographing Walesa shortly after Yeltsin had fainted in public and fallen down. “Every time I photographed Walesa with a woman, he would look at her and raise himself on tip toes if she was taller than he.” One time he forgot to look at a much taller woman, so Rolf “got his attention and stood on my tip toes to give him the message. Someone bumped me from the back and I lost my balance. Walesa laughed, pointed at me and shouted, ‘YELTSIN.'”
Rolf and Victor Borge together were bound to create a classic. “Before I photographed him I had dinner with him at his hotel,” Rolf relates. “I asked him where he was living now and he said, ‘Upstairs.’ After I photographed him I told him to come back soon and he replied, ‘I haven’t left yet.'”
Rolf’s interest in photography goes back to his high school days in New York, where he had his own photo-finishing lab. It remains his passion even though he wasn’t able to make it his life’s work until he retired from American Optical in 1983.
He was born in Badsachsa in the middle of Germany, a town that he hasn’t seen since he moved with his family to New York City in 1929 at age seven. His father and older brother preceded his mother and five other children (Rolf was the fourth child) to New York, where they lived for over ten years before moving to Utah in 1940.
He was the first in his family to graduate from high school and he worked as a messenger for American Optical before enlisting in the army in 1942. He was the only one in Officers Candidate School who hadn’t gone to college, and of the eighty in the class, one-half of them washed out. After OCS, he went to India, where as a first lieutenant he served as executive officer in heavy automotive maintenance that maintained both the Ledo and Burma roads. He was honorably discharged in 1945.
After the army, American Optical called him back and he worked first as a lens grinder, then successively as a sales representative, branch manager, and finally major market manager. When the company closed all its branches, Rolf had had 42 years of service and returned to his first love, photography.
He was divorced from his first wife. His second wife died of cancer at age fifty, and Jane Ball has been his significant other for thirteen years. He has three children, all in Salt Lake Valley, and eight grandchildren and five great grandchildren, scattered all over. He has been a director of Humanists of Utah virtually since its founding in 1991. He is also on the board of The Gandhi Alliance for Peace.
If you’ve talked to Rolf, and you probably have, you’ve also been told a joke. He loves humor, which he combines with his wisdom acquired over eighty years. He calls himself a god-fearing agnostic and passes along this adage for everyone to live by: “Remember that no matter how thin you slice baloney, you can always break a window with a brick.”
Santa Claus and God
The myth of Santa Claus is a mostly harmless fib. Santa fades as children become reasonable and see through it all. Mostly they aren’t mad at their parents for this; the sweet memories of their early Christmases aren’t spoiled by the deceit. But the myth of God is a machination that isn’t allowed to fade, and surely isn’t going away anytime soon. It might be a close call which of the two is actually older, God or Santa. But if God could be proved to be just a little older, maybe he could be retired. To have Santa sitting full time in God’s place would be a lot less emotionally traumatic for a lot of people. This time of year is a powerful season for human beings whatever our particular faith or lack of it. It symbolizes one of the most sacred realities of our existence, the miracle of birth, the pageant of parenthood.
Here are two recently published books dealing with the historical perspective of humanism. Both will reward readers with a clearer understanding of our philosophy.
The Case for Humanism
Lewis Vaughn and Austin Dacey
Rowman and Littlefield Publishers, Inc.
From the Foreword:
“It is the central mission of philosophy to ask the probing questions that may force us to scrutinize our beliefs. It is the special penchant of philosophy to ask searching questions about fundamental beliefs. This book is for those who have the courage to ask themselves such questions. It is an introduction to the ideas and issues that constitute the historical legacy of the humanist movement. It provides a fairly comprehensive overview of humanist positions and arguments concerning the centrally disputed issues that have fueled the debate about humanism. It also provides a fair summary of the major arguments from opponents of humanism.”
Evan Fales, Professor of Philosophy, University of Iowa
This book was made possible by a grant from the Institute for Humanist Studies.
Doubt, A History
By Jennifer Michael Hecht
Publisher: Harper San Francisco
From the introduction:
“Doubters have been remarkably productive, for the obvious reason that they have a tendency toward investigation and, also, are often drawn to invest their own days with meaning. Many scientists and doctors have been doubters; many ethicists and theorists, authors and poets. The earliest doubt on historical record was twenty-six hundred years ago, which makes doubt older than most faiths. Doubt has been just as vibrant in its prescriptions for a good life, and just as passionate for truth. This is its story.”
The author is an accomplished historian and award-winning poet. She is an assistant professor of history at Nassau Community College.
Purpose of Life
Humanists are often criticized because we stumble on the question, “what is the purpose of life?” Because we reject the notion of a divine plan, we are often left stammering.
I believe that we do have a grand purpose that is based in basic biology. Survival of the species is among our strongest inherent instincts, even more potent than self preservation. Our purpose, in my opinion, is to ensure that we are survived by succeeding generations of homo sapiens.
When we care for our families, our neighbors, our communities, and our planet we are fulfilling our purpose.
Organized religions’ philosophies are not really very different than ours except that they advertise a prize of eternal life for the individual. In fact, the root source of religious values is based on the same basic survival instinct. Religious leaders find it easier to control the masses with promises of the reward of eternal life and the threat of damnation.
Acting in a responsible manner to our peers and our environment for the sake of Preservation of the Species makes sense. It is a morally sound argument for “good behavior.”