Posts tagged with: law

scaliaOver the past hundred years few judges have been able to match the wit, wisdom, and intellectual rigor of Supreme Court Justice Antonin Scalia. During his thirty year career he has been an indefatigable champion of originalism (a principle of interpretation that views the Constitution’s meaning as fixed as of the time of enactment) and a vociferous critic of the slippery “living constitution” school of jurisprudence. When future historians assess his career Scalia will be viewed as one of the most thoughtful, principled, and important jurists of his era.

But even a legal genius can produce a disastrous opinion, and Scalia delivered his worst twenty-five years ago this week in Employment Division v. Smith. As Michael Stokes Paulsen explains, this ruling has “proven to be one of the most devastatingly long-term harmful Supreme Court constitutional decisions of the past half century.”
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Raphael Lemkin

Raphael Lemkin

This month marks the 100th anniversary of the Armenian Genocide – a systematic, murderous campaign carried out by the Ottoman Empire against its Armenian population, killing 1.5 million and leaving millions more displaced.

Though these atrocities have been verified through survivor accounts and historical records, to this day, not all countries have recognized the atrocities as “genocide” – the foremost being Turkey, along with others, including the United States.

In a Huffington Post article, “The United States Should Remember Raphael Lemkin’s Words and Formally Recognize the Armenian Genocide,” H.A. Goodman draws particular focus to Turkey’s animosity toward the genocide label, even threatening other countries that recognize the tragedy as genocide.

Most recently, Turkey’s resistance was displayed when Pope Francis referred to the slaughter as the “first genocide of the 20th century.” The Turkish government responded by recalling its ambassador to the Holy See.

But perhaps an even more shocking reality surrounding the Armenian Genocide is this: at the time the Ottoman Empire began exterminating the Armenians in 1915, its actions were not considered illegal. It would be another 33 years before genocide was named a crime under international law, through the United Nations’ adoption of the Convention on the Prevention and Punishment of the Crime of Genocide in 1948, after which the word “genocide” was created and used for the first time, only 4 years prior. For these two significant actions we have one man to thank, a largely unknown Polish-Jewish lawyer named Raphael Lemkin.

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29taxes.2-500In an attempt to trap Jesus, some Pharisees and Herodians asked him, “Is it lawful to pay taxes to Caesar, or not? Should we pay them, or should we not?” In response, Jesus said,

“Why put me to the test? Bring me a denarius and let me look at it.” And they brought one. And he said to them, “Whose likeness and inscription is this?” They said to him, “Caesar’s.” Jesus said to them, “Render to Caesar the things that are Caesar’s, and to God the things that are God’s.”

The Pharisees and Herodians “marveled” at Jesus answer, but had they asked an agent of the Roman IRS they likely would have been given a similar answer.

Governments have always had to contend with citizens who make what are considered “frivolous tax arguments” to avoid complying with tax laws. Such arguments rarely work (it’s usually not effective to try to present a creative interpretation of tax law to the people who interpret tax laws) but people keep trying.

The IRS has an entire list of responses to the most common frivolous tax arguments. Here are four of my favorites:
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rights-are-not-gitsIn his recent announcement that he was running for president, Sen. Ted Cruz’s said “our rights don’t come from man, they come from God Almighty.”

That raised some eyebrows in our secular culture. For example, Meredith Shiner, a Yahoo reporter, tweeted:”Bizarre to talk about how rights are God-made and not man-made in your speech announcing a POTUS bid? When Constitution was man-made?”

The idea that the “unalienable Rights” mentioned in the Declaration of Independence don’t come from God is considered obvious to many secularists. But if our rights don’t come from God, where do they come from? The obvious answer is “the State.” And as Matt Lewis points out, that means the state can take them away:
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ssmweddingcakeThe U.S. judiciary has made it increasingly clear that the rights of conscience either do not apply or are strictly limited for people who own businesses that serve the public. We have an obligation to keep fighting against this injustice against this judicial tyranny, but in the meantime, what are business owners to do? How, for example, should they respond when forced to violate their conscience by serving a same-sex wedding?

That question has been recently debated on Public Discourse, the excellent website of the Witherspoon Institute, by Russell K. Nieli and Jeffery J. Ventrella. Both men agree it would be morally permissible and even commendable for business owners to avoid violating the law by ceasing to serve all weddings, whether traditional or same-sex, or even by ceasing operations completely and finding another line of work. But they disagree on other options. Nieli suggests it would be morally permissible for such shopkeepers to comply with the law and provide services to same-sex couples if they also announced publicly. Ventrella disagrees, arguing that complying with an unjust law is always morally wrong and thus that any shopkeeper implementing Nieli’s suggestion would be engaged in an action that is inherently immoral.

Robert T. Miller joins the debate and asserts that a shopkeeper who objects to sex-same weddings but who nevertheless provides services at such weddings generally acts in a morally permissible way if he acts to comply with a validly-enacted law, to preserve the goodwill of his business, and to make a just profit.
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acton-commentary-blogimage“What could possibly go wrong with a regulatory power grab by a government agency applying an 80-year-old law to the most dynamic and innovative aspect of the world’s economy?” asks Bruce Edward Walker in this week’s Acton Commentary.

The Federal Communications Commission last week voted along partisan lines for passage of network neutrality regulations. The first two attempts were both defeated in U.S. Circuit Court, and one hopes this third try meets the same fate.

The latest strategy deployed by the FCC is reclassification of the Internet from a Title I information service to a Title II communications service. Whereas Title I prescribes a light regulatory touch, Title II opens the floodgates for the agency to regulate as a utility all aspects of the Internet under the 1934 Communications Act. The 1934 law was devised specifically to police landline phones as common carriers with the unfortunate unforeseen consequence of establishing a decades-long telephone monopoly by creating significant barriers of entry for start-ups and smaller companies.

The full text of the essay can be found here. Subscribe to the free, weekly Acton News & Commentary and other publications here.

o-SUPREME-COURT-BUILDING-facebookOne of the core principles of the Acton Institute is the importance of the rule of law: “The government’s primary responsibility is to promote the common good, that is, to maintain the rule of law, and to preserve basic duties and rights.”

While most conservatives would agree with this sentiment, there has recently been a lot of confusion about what defending the rule of law requires and entails. The most troubling mistake is the confusion of the rule of law with judicial supremacy, the view that the Supreme Court gets to have the “final say” on the meaning of the Constitution and that the other branches of government may not contradict it.

As Carson Holloway says, conservatives should defend the Constitution and the rule of law, but they should not defend judicial supremacy. The Constitution—not the Supreme Court—is our country’s highest authority:

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Blog author: dpahman
Friday, February 27, 2015
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Yesterday the FCC reclassified Internet Service Providers (ISPs) as a telecommunications service under Title II of the Communications Act, with additional provisions from Title III and Section 706 of the Telecommunications Act of 1996. This was done for the purpose of ensuring net neutrality or open internet access, requiring ISPs to treat all data on the internet equally. Notably, yesterday’s Order also includes mobile broadband for the first time as well.

In a press release, the FCC claims,

Together Title II and Section 706 support clear rules of the road, providing the certainty needed for innovators and investors, and the competitive choices and freedom demanded by consumers, while not burdening broadband providers with anachronistic utility-style regulations such as rate regulation, tariffs or network sharing requirements.

I have expressed concerns in the past about the smattering of regulations available under Title II, far beyond what would be required for net neutrality. On the surface, the press release would seem to indicate that the recent Order was designed to attempt to prevent those further regulations from being available to the FCC: (more…)

MolinaCover - CopyCLP Academic has now released A Treatise on Money, a newly translated selection from Luis de Molina’s larger work, On Justice and Right (De iustitia et iure). The release is part of the growing series from Acton: Sources in Early Modern Economics, Ethics, and Law.

Molina (1535–1600) was one of the most eminent theologians of the Jesuit order in the sixteenth century. Known widely for developing a theory of human freedom of action (and in turn, a new religious doctrine now known as Molinism), Molina was also the first Jesuit to make major contributions to economic thought through a major treatise (On Justice and Right).

In the book’s introduction, Rudolf Schuessler offers more on the historical context and Molina’s contribution therein. As Schuessler explains, Molina’s views on freedom impacted his entire approach to economics and helped “set the pace for Jesuit economic thought.”

Jesuit economic thought in the seventeenth century gravitated toward individual freedom and displayed a keen appreciation of the market economy while upholding moral restrictions for market activities in a flexible and low-profile form. These features of Jesuit economic thought are of great—although not universally recognized—importance because the Jesuits were the teaching order par excellence in early modernity. Almost all early modern economic thinkers in Catholic countries were taught by the Jesuits, and Molina had the privilege to set the agenda for his order’s economic thought…

…By summarizing and discussing the state of the art of his time, Molina sets the pace for Jesuit economic thought. After the demise of the scholastic tradition and the temporary abolition of the Jesuit order in the eighteenth century, the respective doctrines traveled on back roads into the nineteenth century where they influenced the Austrian school and the marginalist revolution in economics. Molina and his contemporaries were the first to apply the laws of supply and demand systematically to money markets, and as a result conceived the quantity theory of inflation. They began to understand the role of risk, of liquidity, and of time preference in economic contexts, as well as the institutional role of property rights. For this they still deserve our attention.

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Last Friday at Religion Dispatches, Kara Loewentheil explored the recent story of a Denver bakery that is being “sued for refusing to bake a homophobic cake.” She calls into question the legitimacy of the request:

It’s a snappy inversion of the now-classic example of bakers who refuse to provide wedding cakes for gay marriage or commitment ceremonies (or florists who refuse to provide flowers, photographers who refuse to photograph the ceremony, etc.). And that’s probably not an accident; if I were a betting woman, I’d bet heavily that a pro-religious-exemption think tank or law firm, like the Becket Fund, had come up with this plan and recruited a plaintiff to set it in motion.

Joe Carter has recently noted this case here at the PowerBlog as well, writing,

Whether the request was serious or a stunt done to make a political point, I find the viewpoint expressed to be loathsome. Assuming the words were indeed “hateful” they should have no association with a symbolic representation of the Christian faith. I also believe Ms. Silva should not be forced to use her creative skills in a way that violates her conscience.

This case is interesting, as Loewentheil put it, as “a snappy inversion of bakers who refuse to provide wedding cakes for gay marriage or commitment ceremonies.” And to her credit, despite her suspicion that the cake is a lie, she goes on to consider the implications by sharpening the question with a further hypothetical situation:

But what if there was no speech involved, or even no image at all? Just a customer who comes in and says “I want to order a cake to be used at my Church prayer group, where we plan to pray that God will smite anyone in a same-sex marriage or who has had an abortion. We will bless the cake and serve it in celebration of this holy purpose.” That’s a reasonable analogy to the gay couple that requests a cake for their wedding ceremony, I think, for the purposes of separating out identity from action, although it’s an imperfect one given the social and spiritual and legal significant of a marriage. But still, it’s a worthwhile foil for thinking through the argument. So does the fact that I find the prayer service purpose hateful or objectionable, or in conflict with my own principles, change its legal implications?

She explores several possible answers, but comes down undecided in the end:

Another interesting thought experiment is to imagine that you have an anti-marriage equality baker who is willing to bake cakes for gay customers in general, even knowing they are gay, but is not willing to bake one for a gay marriage. If that is discrimination on the basis of sexual orientation, then how do we think about a baker who would be willing to bake a cake for religious Christians in general, but just not if it is to be used at an anti-abortion or anti-marriage equality prayer service?

I’m not sure what the answer is here. But one of the things I find really interesting about this example is the way it highlights the blurry boundaries between politics and religious values.

I have been hesitant to comment on these cases myself for precisely this reason. In fact, I think the boundaries are even blurrier. (more…)