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Friday, November 27. 2020

Superficial thoughts about the US Constitution

 "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." 


Ben Franklin


I was thinking about that, reflecting in a superfical manner about the Supreme's injunction about churches being open if they decided to. Of course, with parishioners or congregants attending if they wished to, or not. 


It's a good topic for a Thanksgiving weekend given that some of our ancestors came to the US only for religious freedom. Not that the early settlers permitted religious freedom except for the Congregationalists, because here in Connecticut you would be in big trouble if you missed church. They hung Quakers in Boston but, interestingly, made exceptions for the Jews.


To get back to Ben Franklin's quote, it was likely taken out of context.  All the same, if raises the crucial issue in freedom. 


I saw this:  Justice Sotomayor Upbraids SCOTUS Majority for ‘Playing a Deadly Game’ With COVID Restrictions. Her seemingly emotional response is misguided, as seems obvious, because some danger to self or others is implicit in most things we do.

Posted by The Barrister at 14:44 | Comments (9) | Trackbacks (0)

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I note the CNN headline: Supreme Court's scientifically illiterate decision will cost lives , with text in the article saying

QUOTE:
When it ruled this week against New York state's decision to limit religious gatherings in a few high-incidence parts of New York City, the court proved the dangers of scientifically illiterate judges overturning government decisions that were based on scientific evidence.


Sotomayer's dissent strikes me as of the same view -- not emotional, just the thinking "having such restrictions is the right thing to do, so we shouldn't hold that the first amendment bars it".

It has been the same with other cases, such as those enforcing limits of Michigan Governor Whitmer's powers. Some subset of those who think the disputed edicts are the 'right thing to do' appear to be not-at-all concerned that the person or office issuing the edict may not have properly constituted authority to make such edicts.

They think that the case is about science, or whether the scientific evidence supports the efficacy of government action in question. It does not occur to them that something that is by all rational lights the correct choice 'scientifically' may still be something that the government is prohibited from doing.
#1 Douglas2 on 2020-11-27 16:57 (Reply)
And not just scientifically right. If, for instance, people ought to engage in charity, then it follows that government must be the charity-in-chief. If there's anything that's a good idea for people anywhere, government must first enable it, then mandate it. The totalitarian impulse starts out small and benign, but without a limiting principle it turns monstrous. We forget that government is not just "a name for the things we do together." It's a name for the things re reluctantly conclude must be done coercively or not at all. We forget that there are lots of things we do together by voluntary association, in private institutions large and small from friendships to families to churches to communities.
#1.1 Texan99 on 2020-11-28 06:32 (Reply)
Take one quick look at Sotomayer. Just how many co-mordidities do you think it's likely she has?
#1.2 Gospace (Link) on 2020-11-28 16:33 (Reply)
I think I smell a whiff of Revisionism in Witte's take, here. I've often found this line of argument from the Left, as they appeal to context. In such cases, they're appealing to context only as far as they can control it. Any broader context than that is carefully ignored, or if forced, disparaged.

I have a difficult time trying to reconcile Witte's take on this with Franklin's broader position on liberty. On the other hand, if one is simply looking for one's assigned position, and a debunking-level argument with which to back it up, Witte's take woul fill.the bill nicely.
#2 Phil, Jr. on 2020-11-27 17:44 (Reply)
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#2.1 Willard Kearl (Link) on 2020-12-23 18:31 (Reply)
I'm confused about what you're discussing here.

At least according the summary and excerpts from the actual opinions at Prof Jacobson's site (https://legalinsurrection.com/2020/11/huge-religious-liberty-win-at-scotus-rejecting-ny-lockdowns-what-a-difference-a-barrett-makes/)

the churches were not asking to 'be(ing) open if they decided to', nor was there any discussion of whether Gov Cuomo or Mayor De Blasio 'may not have properly constituted authority to make such edicts.'

The issue at hand is whether COVID restrictions placed specifically on religious institutions that are substantially stricter than similarly situated secular organizations such as restaurants and other businesses would pass a 'strict scrutiny' test that is usually applied to restrictions that intersect with fundamental rights guaranteed by the Constitution. Cuomo tried to finesse the situation by a seemingly arbitrary decision to reclassify the zone these congregations are into a lower COVID level but there's not indication that at a later date he would make a similarly arbitrary decision to change the rules back.
#3 Christopher B on 2020-11-27 17:45 (Reply)
Sure would be a shame if Roberts and the rest of the filthy Communist swill on the Supreme Court would move to a warmer climate with RBG...
#4 Mark Matis on 2020-11-27 19:06 (Reply)
If one reads the entirety of the letter, one might conclude that it is Witte and NPR who have misconstrued the statement at issue by not putting it in the proper context. This particular line was in a completely different paragraph than those addressing the Penn taxation issue - a paragraph addressing the legislature's attempt to balance a desire to protect those being attacked by certain tribes allied to the French and respect for the rights of citizens of the colony to be free from certain burdens:

"In fine, we have the most sensible Concern for the poor distressed Inhabitants of the Frontiers. We have taken every Step in our Power, consistent with the just Rights of the Freemen of Pennsylvania, for their Relief, and we have Reason to believe, that in the Midst of their Distresses they themselves do not wish us to go farther. Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."

https://founders.archives.gov/documents/Franklin/01-06-02-0107

But, of course, in 2020, even Ben Franklin must be construed as "woke."
#5 DougT on 2020-11-27 20:20 (Reply)
The old axiom, "Believe nothing that you read and half of what you see" applies very well here, except maybe that inflation has rendered the 'half' into a 'quarter' by now.

I have come to never believe the media's words; One of the Franklin commenters referenced is from Lawfare - If it's Witte, it's lying spin, guaranteed! If you want to know what the USSC decided, then read it for yourself and think it through. It's terrific exercise. And [i]then[/], for entertainment, read what the hacks wrote.
#6 Aggie on 2020-11-28 10:34 (Reply)

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