religious toleration

For many generations philosophers, theologians and laity have asked of themselves ‘how does religion affect society. As a self identified Humanistic Thomist, I tend to argue that God endowed humankind with the rational intellect and spiritual conscience necessary to exercise free will. It is the exercise of free will in deference to intellect and conscience that permits humankind to choose their r
eligion. This freedom of choice resulted in the development of a multitude of faiths and traditions including the monotheistic faiths of Judaism, Christianity, and Islam. It was the desire of the Founders of the United States to protect the right of individual to choose their own religion and to avoid the religious conflicts that engulfed England, Ireland, Scotland and Wales from 1533 to 1746 that prompted James Madison to construct with advice from Thomas Jefferson the proposed amendment to the Constitution which became the First Amendment, an amend designed to promote the free exercise of religion without fear of reprisal by the state, while simultaneously reinforcing the absolute prohibition on requiring office holders to take test oaths or being required to submit to religious tests before being deemed fit for office.

Despite the fact that each of the three Occidental monotheistic faiths that trace their roots back to the Patriarch Abraham (Ibrahim) have engaged in fratricidal conflict in the past all three possesses traditions that permit interfaith dialogue aimed at bringing people together. I would humbly assert that the Dalai Lama, M.K. Ghandi, Mother Teresa, John Dewey, and the Late Aga Khan consistently advocated non-violence, interfaith dialogue and peaceful coexistence without impressing their views or intentionally baiting those opposed to their world views.

Given the bifurcated nature of the First Amendment where religion is concerned, does United States have a role in facilitating such dialogue? If the United States advocates in favor of interfaith dialogue and actively encourages it, do these actions vitiate the First Amendment by acting in a manner contrary to its spirit?

Political Zealotry

I fear the extremism of political parties like the Tea Party and the Pirate Party of the United States because they are based on political frenzy and to a lesser extent demagoguery. We as a Republic must remain mindful of Vice President Burr's final words to the Senate.

“This house is a sanctuary; a citadel of law, of order, and of liberty; it is here, here in this exalted refuge, if anywhere,
will be resistance made to the storms of political frenzy and the silent arts of corruption. And if the Constitution be destined ever to perish by the sacrilegious hands of the demagogue or the usurper, which God avert, its expiring agonies will be witnessed on this floor.” Aaron Burr's Farewell Address to the Senate March 1805.

My worries stem from the "Contract From America" specifically points one and five. Point one requires that the legislature identify the constitutional basis for each piece of legislation it passes. The provision could be abused to point where Article I sections 8 and 18 become meaningless due to an over literal interpretation. Furthermore the contract as it reads could be used to interfere with the judiciary's ability to exercise its functions under Article III.

In regards to point five the creation of blue ribbon panel capable of making determinations about the constitutionality of government agencies could potentially encroach and interfere with ability of the judicary to act in its capacity the arbiter on the constiutionality of government agencies because, the contract as written does not acknowledge the role of the judiciary in such cases. The idea that the legislature may audit agencies to assess their constitutionality is troubling because it is well settled that constitutionality of an agency or department rests with judiciary. See: Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Humphrey's Executor v. United States, 295 U.S. 602 (1935); United States v. Butler, 297 U.S. 1 (1936); Ashwander v. TVA, 297 U.S. 288 (1936); Jones v. SEC, 298 U.S. 1 (1936); NLRB v. Jones & Laughlin Steel Corp. 301 U.S. 1 (1937); NLRB v. Fruehauf Trailer Co. , 301 U.S. 49 (1937); NLRB v. Friedman-Harry Marks Clothing Co., 301 U.S. 58 (1937); Associated Press v. NLRB, 301 U.S. 103 (1937); Washington Coach Co. v. NLRB, 301 U.S. 142 (1937).

Some have asserted that my position is tantamount to substitution in the sense that my opponents argue that I favor rendering Congress subservient to the Federal Judiciary, nothing is more removed from the light of truth. I seek only maintain the constitutionally mandated separation of powers contained within Articles I, II, and III of the Constitution.

It is true the Congress must attempt in good faith and due diligence ensure the constitutionality of legislation, but they sometimes forget as demonstrated by the Court Packing Plan of 1937 and the Ironclad Oath of 1862. Since Marbury and Laird were handed down in 1803 the judiciary on both the state and federal levels have reinforced and reaffirmed the judiciary’s position as the final arbiter of constitutionality when the constitutionality of a law, and by extension its legality is called into question. The judiciary has also consistently maintained that the legislature cannot encroach on its functions by expanding or diminishing them.

As elsewhere throughout the Constitution the section in question lays down principles which control the use of the power, and does not attempt meticulous or detailed directions. Every presumption is to be indulged in favor of faithful compliance by Congress with the mandates of the fundamental law. Courts are reluctant to adjudge any statute in contravention of them. But, under our frame of government, no other place is provided where the citizen may be heard to urge that the law fails to conform to the limits set upon the use of a granted power. When such a contention comes here we naturally require a showing that by no reasonable possibility can the challenged legislation fall within the wide range of discretion permitted to the Congress. How great is the extent of that range, when the subject is the promotion of the general welfare of the United States, we hardly need remark. But, despite the breadth of the legislative discretion, our duty to hear and to render judgment remains. If the statute plainly violates the stated principle of the Constitution we must so declare. United States v. Butler, 297 U.S. 1, 56 S. Ct. 312, 80 L. Ed. 477, 1936 U.S. LEXIS 946, 1936-1 C.B. 421, 4 Ohio Op. 401, 16 A.F.T.R. (P-H) 1289, 36-1 U.S. Tax Cas. (CCH) P9039, 102 A.L.R. 914 (1936)

See: Webster v. Reproductive Health Services, 492 U.S. 490, 109 S. Ct. 3040, 106 L. Ed. 2d 410, 1989 U.S. LEXIS 3290, 57 U.S.L.W. 5023 (1989) United States v. Butler, 297 U.S. 1, 56 S. Ct. 312, 80 L. Ed. 477, 1936 U.S. LEXIS 946, 1936-1 C.B. 421, 4 Ohio Op. 401, 16 A.F.T.R. (P-H) 1289, 36-1 U.S. Tax Cas. (CCH) P9039, 102 A.L.R. 914 (1936); Evans v. Thompson, 518 F.3d 1, 2008 U.S. App. LEXIS 2816 (1st Cir. Mass. 2008

I contend that these planks of the Tea Party's platform implicitly violate Article III of the Constitution by impinging on the right of the judiciary federal judiciary to adjudicate legal questions related to legislation passed by Congress in the event a controversy arises. These planks in essence would abrogate and vitiate over two centuries of precedent dating back to 1794.

Political Independence

People often ask me whether I am a Democrat or Republican. My answer is as it has been for many years that I am neither because while I tend to be fiscally conservative I am an internationalist. In my view, the sustainability of the Republic has always been dependent upon the ability of both parties to compromise and moderate their stances on issues, especially those issues that politicians view a
s constitutional.

The increasing partisanship that characterized the eight years of the presidency of George Walker Bush and his successor President Barack Hussein Obama troubles me. Partisanship and its attendant factionalism have forced many centrists to retire or resign from their elective offices rather than seek reelection, which in turn resulted in the major parties moving away from the political center and retreating to more conservative or liberal positions. Unchecked partisanship, unwillingness to compromise, and an inability to moderate positions in an effort to find the common good for all its citizens regardless of gender, sex, race, sexual preference and ability on several occasions brought the Republic near the brink of failure. I can name at least six instances, historically, that nearly destroyed the republic:

1. The crisis over the Judiciary Acts of 1801 and 1802 that resulted in the Supreme Court not sitting from January 1802 to February 1803;
2. The attempted Impeachment of Associate Justice Samuel Chase in 1804-1805, and the trial of Aaron Burr in 1805 politically motivated attempts to alter the stance of the Supreme Court by embarrassing them;
3. The economic challenges brought about by the War of 1812 that led the Federalist to call the Hartford Convention of 1814-1815 and ultimately led to the dissolution of the Federalist Party;
4. The period from 1820 to 1877 was marked by a level of partisanship and hatred that reached a crescendo with the Civil War, 150 years later we are still suffering from the wounds which led to and resulted from this war;
5. The attempted impeachment of President Andrew Johnson in 1868 in which Congress attempted to assert primacy over the Executive Branch;
6. The Court Packing plan of 1937 that President Roosevelt and his allies attempted to use as a cudgel to leverage the Supreme Court into reversing its stance on the New Deal.

Our sociopolitical history demonstrates that Ishii Itaro was correct when he asserted, “in diplomacy, as in politics in general, compromise is essential; the interests of the opposition cannot be ignored. Give and take is crucial. One must think in terms of fifty-fifty, not seventy-thirty."

Associate Justice of the Supreme Court of the United States Robert Houghwout Jackson highlighted the centrality of compromise and moderation to the sustainability of the Republic in his work published posthumously in 1955 and reprinted in 1963 entitled The Supreme Court in the American System of Government. In his discussion of President Lincoln’s suspension of the Writ of Habeas Corpus and Chief Justice Taney’s response in Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861), Justice Jackson contended that neither the President, nor the Chief Justice accorded the concerns of the other with the weight they deserved, and in effect unintentionally caused further damage to a nation rent asunder by war.

Had Mr. Lincoln scrupulously observed the Taney policy I do not know whether we
would have had any liberty, and had the Chief Justice adopted Mr. Lincoln's
philosophy as the philosophy of the law, I again do not know whether we would
have had any liberty (Jackson 1955, 76).

The Founders intended the Constitution to be an organic document capable of addressing itself not only to their concerns, but as a document to protect succeeding generations. However, we must remain vigilant and guard against any interpretations that render the text too expansive or too restrictive such that it becomes useless and meaningless.

Now it is argued that these cases are distinguishable, because they arose under an act of Parliament which was not limited by any Constitution. So, indeed they were, and if our Constitution embalms inflexibly the habits of 1789 there may be something to the point. But it does not; its grants of power to Congress comprise, not only what was then known, but what the ingenuity of man should devise thereafter. Of course, the new subject-matter must have some relation to the grant; but we interpret it by the general practices of civilized peoples in similar fields, for it is not a strait-jacket, but, a charter for a living people. Reiss v. National Quotation Bureau, Inc., 276 F. 717 (S.D.N.Y., 1921).

Thoughts on International Law: A revision

In the first edition of An Introduction to the Philosophy of Law published in 1922, Nathan Roscoe Pound, the Dean of Harvard Law School from 1916-1936 argued that the law is cyclical in nature, and the evolutionary process that law undergoes reflects a series of reactions and counter reactions by advocates of various jurisprudential theories. Dean Pound asserted that philosophical nature of the debates about the relative merits of the various theories resulted in a process of legal development that is dynamic in nature because, as newer theories develop the older theories attempt to counter them. The ability of older more established schools of thought to reply to the newer schools requires the older schools nullify and disavow outmoded conventions, customs, norms, practices, and traditions. Conversely, for a newer theory to achieve a degree of legitimacy it must abjure the practice of attempting to create a single uniform standard of law universally applicable without the need for exceptions over an indeterminate time Id: (Pound 1982, 1-4).




Internationally an example of the debates described by Dean Pound occurred between Edward Hallett Carr and Sir Hersch Lauterpacht on the relative merits of the Machiavellian realistic tradition, and the Grotian humanistic tradition. In his seminal work, The Twenty Years' Crisis, 1919-1939: An Introduction to the Study of International Relations, Carr argued that law is a series of commands unencumbered by ethical considerations, see: (Carr 1946, 176). Carr’s view of the law recognizes sovereignty as an element of the authority by which, the state compels obedience to the laws of the state. As a response to Carr’s realistic and positivist approach, Sir Hersch Lauterpacht advocated the Grotian view of international law rejecting outright Carr’s legal positivism see (Kwiecień 2011) and (Jeffery 2006).




Lauterpacht argued the inverse asserting that although legal questions are separate and distinct from ethical and moral questions, the three inextricably intertwined as they are renders it impossible to completely divorce, the law from ethics and morals that underpin it. The clearest and most concise statement of Lauterpacht’s humanistic approach to international law essay entitled “The Grotian Tradition in International Law,” which appeared in the British Year Book of International Law published in 1946. Concerning sovereignty Lauterpacht argued that the sovereignty of state derives not from the inherent power and authority of the state but from the law of nations and the natural law. On the law of nations, Lauterpacht maintained that the recognition of the law nations by individual states is by its nature a dualistic construction predicated on the will of the governments and in part on the consent of the citizens of the nation-state. The desire of the nation states to retain at all costs their sovereign status and primacy within the international sphere has engendered the development of a distinction between legal questions concerning the interpretation of international law that are justiciable before international tribunals, and political questions which are generally held to be non-justiciable under international law.




Arguments relating to non-justiciability generally adhere to the following two generally theories. The first theory asserts that a class of purely political questions requiring a political settlement, lacking a legal dimension sufficient to resort to a judicial means of settlement at either the international or national level exists. The second theory used preserve the sovereignty of states maintains that in general the majority of political questions concern the domestic policies of the respective states and affect the honor and the fundamental interests of the state, as such the customary principle of non-intervention into the domestic affairs of states present within international law prohibits the adjudication of political questions. Judge Lauterpacht asserted in his volumes The Function of Law in the International Community, and The Development of International Law by the Permanent Court of International Justice first published in 1933 and 1934 respectively, which were subsequently synthesized within the pages of The Development of International Law by the International Court an expansive revision of his 1934 work published in 1958 that arguments claiming that some disputes were not justiciable under international law because of their characterizations political questions concerning the fundamental interests of the state or the lack of an adjudicable element reflected the inherent desire of the nation-states to retain their sovereignty and primacy within the international sphere and to resist any tendencies towards impingement or limitation. He maintained that the distinction between legal and political questions within international law is an artificial one that is meritless because all disputes of an involving two more nations is an international dispute, and that a possess a legal facet capable of being adjudicated before a competent tribunal Id: (Lauterpacht 1933), (Lauterpacht 1934), and (Lauterpacht 1958).





Judge Lauterpacht’s corpus provided a lucid explanation and reason for accepting the humanist view of international law as one of several viable theories of international law alongside Carr’s realistic positivism through its presentation in Judge Lauterpacht’s separate opinion in the Case of Certain Norwegian Loans . The International Court of Justice employed Judge Lauterpacht’s reasoning in the case concerning the military and paramilitary activities employed by United States against Nicaragua.

Given the cyclical nature of the law as demonstrated above, I would contend that over time a counter reaction develops, in which, the humanist perspective currently holding sway in international at present will give way to another theory. One descended from the twin theories of legal positivism and political realism who advocate positions similar to those norms adopted by Herbert Lionel Adolphus Hart and Hans Joachim Morgenthau norms and standards, which, impart to the state primacy over the individual.

Put simply the near constant state of fluctuation present within international law imparts a greater degree of fluidity and flexibility within international law than is present within municipal law. This flexibility allows the various schools of thought to achieve a greater degree of ascendancy over other theories in a shorter time. For example, the immediate aftermath of the Second World War ushered in a period in which the strict realistic legal positivism advocated by Lord McNair and Hans Kelsen dominated international law. By the 1960's Lauterpacht's neo-naturalistic humanist view of international began to supplant the strict realistic positivism advocated by the Kelsenians. Lauterpachtian Humanism reached its apogee in the mid 1980's, and in the following decades, several realistic theories of international law have been the process of formulating a cohesive response. It is believed, that this response will ultimately supplant Lauterpachtian Humanism as the dominant theory of international law.




Regardless of the theory in ascendancy, there are elements common to all theories that are immutable. For example, all theories of international law accept to varying degrees, the universality principle. The universality principle, all states are granted the right to adjudicate matters involving crimes under international law either within the international judicial system or the national judicial system of the various nation states, piracy, war crimes, crimes against humanity, and crimes against peace as defined within the sources of international public law.






Sources



Carr, Edward Hallett. The Twenty Years' Crisis, 1919-1939: An Introduction to the Study of International Relations. Second Edition. Vol. One. 1 vols. London, England: Macmillan, 1946.



Case of Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits Judgment of June 28, 1986, p. 14. General List No. 70 (International Court of Justice, The Hague June 28, 1986).


Case of Certain Norwegian Loans (France v. Norway) Judgment of July 6, 1957. General List No. 29 (International Court of Justice, The Hague July 6, 1957).


Case of Certain Norwegian Loans (France v. Norway) Judgment of July 6, 1957, Separate Opinion of Judge Sir Hersch Lauterpacht. General List No. 29 (International Court of Justice, The Hague July 6, 1957).


Jeffery, Renée. "Hersch Lauterpacht, the Realist Challenge and the 'Grotian Tradition' in 20th-Century International Relations." European Journal of International Relations (Sage) 12, no. 2 (June 2006): 223-252.


Kwiecień, Roman. "Sir Hersch Lauterpacht's Idea of State Sovereignty - Is It Still Alive?" International Community Law Review (Nijhoff) 13, no. 1/2 (January 2011): 23-41.


Lauterpacht, Hersch. The Function of Law in the International Community (Oxford, 1933), xxiv and 452 pages


The Development of International Law by the Permanent Court of International Justice (London, 1934), ix and 111 pages


The Development of International Law by the International Court (London, 1958), xix and 408 pages


"The Grotian Tradition in International Law." British Year Book of International Law: 1946 (Oxford University Press ) 23 (1946): 1-53.


Pound, Nathan Roscoe. An Introduction to the Philosophy of Law. Third Edition. Vol. 1. One vols. New Haven, CT: Yale University Press, 1982.