It Takes An Atheist to Deny Evolution

It is truly a marvel of foolishness that sincere Christians, who deny well-established geological and biological facts, rest their case upon a foundation of atheism. A good example is prominently displayed among the propaganda offered to the world by Answers in Genesis. At the heart of all AIG’s denial of plain evidence and sound science, not to mention twisting of Scriptural truth, lies a statement by the well-known atheist, Richard Bozarth:

“Christianity has fought, still fights, and will continue to fight science to the desperate end over evolution, because evolution destroys utterly and finally the very reason Jesus’ earthly life was supposedly made necessary. Destroy Adam and Eve and the original sin, and in the rubble you will find the sorry remains of the Son of God. If Jesus was not the redeemer who died for our sins, and this is what evolution means, then Christianity is nothing.”

How sad. This statement appeared in ‘The Meaning of Evolution’, American Atheist, p. 30., 20 September 1979. No reputable scientific journal would publish such unverifiable rubbish. Christians should not be giving credence to this nonsense by devoting time and effort to denouncing it. Rather, we should laugh at it, get a good night’s sleep, and wake up in the morning, refreshed and ready to go on living the Gospel as best a falliable human can do, confident that by Jesus’s birth, life, death and resurrection, we are saved. What has evolution to do with that fundamental truth?

Bozarth’s statements do not even qualify as a lie. They do not rise to that level of integrity.They are a series of false premises, which lead with perfect logic to a perfectly wrong answer. Bozarth first strips away 99% of the significance of Emmanu-El, which means God With Us, then asserts that evolutionary theory destroys Adam and Eve, which it does not. Finally, Bozarth suggests that if life developed from simpler to more complex forms over billions of years, then Jesus was not the redeemer who died for our sins. It is not evolution, but Bozarth, who says that “Christianity is nothing.”

Why was the human baby Jesus born to a Jewish family? Why was the Holy Spirit not incarnate of a virgin in China, or South America? After all, God can do anything that God pleases. This child was to be, among many many other things, “a light to the Gentiles.” The Covenant that God had made with one people was to be expanded, and made available to all peoples. That began with a human child learning the Scriptures of the Covenant, among the chosen people.

Human reason might suggest that the Son of God, by whom all things were made, would know this without needing to study in a synagogue or at the Temple. Beware reliance on human reason in spiritual matters. Remember that Jesus, “became fully human,” among the people God had chosen as his own. Suppose there had been no original sin. Would Jesus as a light to the Gentiles have been of no significance? Would God have been silent when Moses climbed to the summit of Mt. Sinai? Would the Ten Commandments have been moot?

I once heard a highly respected pastor, who preaches to three packed services every Sunday, teach from the pulpit “Let me tell you why I am a Christian, because there is a lot of truth in other religions. But when I pray, I know I am praying to a God who has been through what I am going through.” Is that not one of the unique and marvelous features of the Gospel? God is omnipotent, omniscient, omnipresent, the first, the last, beyond all things, but this incomprehensibly mighty God chose to take on human flesh and dwell among us! Is this nothing?

Evolution does not, and cannot, deny even Adam, or sin, much less the need for salvation. Human origins are neither so precisely known, nor so vaguely defined, to provide a foundation for such denial. Genesis does not in fact specify that a single man and a single woman were the ancestors of all human life. The word “adam” in the original Hebrew means humanity, all of humanity. It is not the name of an individual. Only in European cultures is “Adam” given as a name for an individual baby boy.

Genesis 1:27, in English translation, says both “in the image of God created he him” and “male and female created he them.” Genesis 5 refers to “the generations of Adam” and verse 2 refers to “when God called their name Adam.” Adam could have been an entire tribe. There is a lot more to Genesis than our cherished Sunday school stories cover. More important, there is a lot more to Genesis than Richard Bozarth cares to answer to.

The Word of God cannot be reduced to the limitations of the human mind, either by human science OR human theology. We should not let our faith get wrapped up in empirical details. Bozarth and his ilk find those details a convenient snare for the weak and the unwary, but why should we walk into this semantical trap? We already know that we fall short of the glory of God. (And that is the real meaning of “sin.”)

The honest truth is, we don’t know exactly what Adam was, who the first people were, because God didn’t really care about revealing those details to Moses. There are many pious paintings, but no detailed revelation from God. That there were first generations of humans, that they made some bad choices that still afflict their descendants, is all we need to know. Mark Twain has written a humorous account of Eve’s diary, but God did not give us an account of daily life east of Eden.

The geological record is full of humanoid species that seem more and more like humans, but they were NOT human. The genetic record suggests that OUR ancestors emerged from a “genetic bottleneck” in the last 50,000 to 200,000 years. That means a very small number of individuals was separated out from all others of their kind, for a prolonged period of time. Perhaps only two, but science cannot tell us that. Nor can science tell us anything about what preceded that genetic bottleneck.

Genesis makes a very significant distinction between the creation of adam and the creation of all other life. Verses 11, 20 and 24 reveal the command “let the earth bring forth” and “let the waters bring forth,” – God watched it happen, then intervened over some period of time in the results. Verse 27 says “So God made man in his own image.” The creation of adam, man, male and female, was a distinct and different act. How was it different? Only in this: it was a direct act of creation by God, not a call for the waters and the earth to “bring forth” life. Whether it was spiritual or physical or both, is a matter we can study and speculate on.

None of this tells us that there was, or was not, an original sin. Nor did God bother to tell us exactly what the fruit of the tree of knowledge of good and evil was. Genesis does not even satisfy human understanding or curiousity as to why adam was not to eat of the tree. Most Bible-believing Christians settle for “because God said so.” We don’t know any more than that.

The first and most important requirement of faith is NOT that God did this for us, or that God did that for us, but recognition of what God first told Moses in the desert, out of the burning bush: “I AM.” Jesus taught that the first and most important commandment is “Hear Oh Israel, the Lord our God is one God, and you shall love the Lord your God with all your heart and all your soul and all your mind.” Praise for what that God has done for us, even to giving his only Son, follows immediately after. But if God never did anything for us, he would still be the Almighty one and only omnipotent creator.

Most Christians find salvation in the precious blood of Jesus through their own painful life experiences. How low we have sunk in our own lives, not the intellectual recognition of some abstract doctrine, is what leads to a born-again experience. Sin is, on the one hand, a very singular definition of the gulf that separates mere mortal man from the glorious infinity of God. But individual humans are more intimately familiar with their own sins, and revere Jesus as the Christ because of “What he’s done for me.” If Richard Bozarth hasn’t found that, that is his problem. Don’t blame the fossils.

Friends And Foes of Christmas

The Most Unnecessary Holy War

Perennial politician Jerry "Grinch" Falwell, is always clever at reducing the church to a political base for his own advancement. This year, Falwell has called for a "Friend or Foe Christmas Campaign." Next we can expect a video game called "Battlefield Christmas"? Christian writer James Watkins rightly notes that Falwell is "launching a holy war" (in Arabic that translates "jihad") for a season when certain angels proclaimed "peace on earth."

To give Falwell his due, there is a kernel of truth at the heart of this misbegotten nonsense. Falwell calls on people of faith to oppose various attempts to "intimidate school and government officials by spreading misinformation about Christmas. Celebrating Christmas is constitutional!” Indeed it is. (If you want details, check out What's Your Problem? It's Christmas! ). That is so well established under existing Supreme Court decisions, one wonders why it provokes any controversy.

In fact, we should be more specific about who has what constitutional right to celebrate Christmas. Individuals and families have an unchallenged right to celebrate Christmas any way they choose. That is called free speech, free expression, free exercise of religion. Neither congress nor any state may pass a law to prohibit any of the above. Neither may the courts. If several families want to get together for a communal celebration, that is called freedom of association. The only limitation is, none of us can break a law, by committing murder, robbery, trespass, assault, or creating a public nuisance (like blaring carols over a sound system at 80 decibels in a residential neighborhood), in the name of celebrating Christmas.

Churches have an undoubted right to celebrate Christmas also. This is called freedom of religion, freedom of speech, free expression, freedom of association. This right includes putting up Christmas displays on church property, which may be visible for hundreds of yards, or even for miles. The fact that some atheist may be offended is legally irrelevant.

Businesses have a right to observe or not observe any holiday. That is basically the right to advertise your wares in whatever language you choose. There are some grinches of the anti-religious variety who consider it inappropriate for a business to observe a religious holiday. These grinches are entitled to their opinion, but it has no legal force at all. "Establishment of religion" is indeed prohibited by the First Amendment, but "Establishment" is something done by government, not by private businesses. The law insists that a commercial enterprise must serve all customers, without regard to religion, but it doesn't regulate what a business puts up in its windows for which holidays.

Falwell apparently wants Christians to target businesses that do not celebrate Christmas. That is his constitutional right, as a matter of free speech, and the right of any individual who chooses to follow him, (as distinct from those who choose to follow Him). Reportedly, Target Stores prohibits employees from wishing customers "Merry Christmas." That is silly. It may be good for business, it may be bad for business, it may have no impact on business. But it is Target's choice. If enough customers turn away from Target at Falwell's call, Target may revise their policy. I don't shop at Target, so I won't have any impact either way. Target is denied by law the authority to require employees to say "Merry Christmas," if an employee has religious objections to doing so.

Most Americans have enough sense and courtesy to be pleased when a member of any faith greets any other person in the name of a holiday. If the well-wisher is Jewish, "Happy Hannukah" is a compliment, whether expressed to a fellow Jew or to anyone else. Out of the mouth of a Christian, "Merry Christmas" is as good as "have a nice day," whether the person who hears the greeting is a Christian, a Buddhist, an atheist, or a pagan. And yes, Christians should accept "Happy Solstice" as a greeting of good will, and reply "Merry Christmas." Its not competitive, it is from the heart, of the person speaking.

There isn't much room left in the law for nuisance litigation about this stuff by self-righteous grinches. Check out the Freedom From Religion Foundation's web page Other Court Challenges. You will find that these enemies of religious freedom, implacable foes of the First Amendment to the Constitution of the United States of America, have abandoned any attempt to file cases in the courts of Wisconsin, the state where FFRF headquarters are located. Why? Because some years ago, they lost a case over the display of a manger scene in a public park in the city of Waunakee. (Awwwwww...) They have also lost their Ten Commandments litigation, since the last time the web site was updated.

There are two key cases decided many years ago by the Supreme Court of the United States, which clear the way for federal, state and local governments to join in and recognize that large numbers of Americans are indeed celebrating Christmas. One case is Lynch v. Donnelly, 465 U.S. 668. The Supreme Court allowed a city-sponsored downtown display that included a manger scene, Santa Claus, a Christmas tree, and a banner reading "Season's Greetings," in Pawtucket, Rhode Island. This is not an "Establishment of religion" by the city. The other is Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573. The court ruled that a manger scene sponsored by a religious organization in the main front stairway of the county building is unacceptable, because it amounts to the county expressing preference for a specific religion, and a specific denomination, over all others. But the Pittsburgh city display of a tree, a menorah, and a star, was perfectly acceptable, and most likely could have included a manger scene also.

Since this is all so well established, why is it that Falwell finds it necessary to whip up a holy war? Maybe his empire just needed a good controversy for a fundraising letter? Spiritually, Falwell has made Our Father's House into a den of thieves. Constitutionally, he presses for the church to embrace the profane hands of the civil magistrate, which James Madison called "an unhallowed perversion of the means of salvation."

Churches in the Denver, Colorado area showed a better way last year. The city and local businesses were sponsoring a very secular tinselly Christmas parade. A number of churches simply exercised their undoubted constitutional right to walk peacefully downtown singing Christmas carols, offering free hot chocolate, and passing out calendars of holiday worship services to anyone who wanted one. That is sharing the love of Jesus, expressing peace on earth, good will toward men, with an open invitation to salvation. It requires no campaign, no fundraising letters, no friends or foes, just Christians doing what Christians do. All well, no Fall.

George Bush's Paper Tiger

Murtha and Hastert are both correct
about the war in Iraq

As reported in the New York Times, "Representative John P. Murtha of Pennsylvania, a Vietnam combat veteran who voted for the Iraq war, said that after more than two years of combat, American forces had united a disparate array of insurgents in a seemingly endless cycle of violence that was impeding Iraq's progress toward stability and self-governance." He called for a withdrawal of American troops in six months.

Speaker of the House Dennis Hastert, a Republican, called this "a policy of cut and run." Both are correct. This should bring us to an understanding of why George W. Bush's decision to invade Iraq in the first place was so terribly wrong.

There are two times to fight a war. One is when the nation's survival is at stake, and there are only two choices: win or perish. The last war where that was the clear-cut situation facing the United States of America was World War II. Our parents and grandparents (for younger readers, great-grandparents and great-great-grandparents) acted like it. Blackouts, civil defense, rationing of gasoline and meat and sugar, victory gardens, scrap metal drives, liberty bonds, saving fat from cooking meats to be turned in for making ammunition... Not so with Iraq. Has anyone given up one cup of latte for the war effort this year?

The other time to fight a war is when a nation sees something to gain by going to war, and has the power to win. That may or may not be a moral choice, but what is going to stop us? Morality depends on what is to be gained, and the nature of the enemy. Hitler thought he had an invincible military machine, that is why he went to war. He was wrong. Moral or immoral, no anti-war movement has ever prevented such a war. It is too easy to go along, and enjoy the ride. Win the war, and drink your latte too.

A majority of Americans believed that in Iraq, we faced one of these two situations. Frankly, most Americans, and most of the Bush administration, leaned heavily on the second possibility: hey, we can run right over anything Iraq can put in the field, so why not do it? Colin Powell knew better; that is why he isn't in the Bush cabinet any more. He warned the little boy in the White House that once we took out Hussein's armies and government, we would be responsible for everything that happened in Iraq. George didn't want to hear it. He never had a plan for what to do next. It must have made his head hurt to try to think about it.

The truth is, nothing going on in Iraq inspires Americans to make any and every necessary sacrifice to win. There are many forces in Iraq that are willing to make any sacrifice to win. That is why we are not winning against them. Most of them are pretty nasty characters, but they are willing to do whatever it takes to win. We are not. Some of those Iraqis are currently allied with us, some are fighting against us, none of them particularly respect us. Any sane, rational, well-informed leadership should have understood that before going into Iraq in the first place.

There was no such thing as "the Iraqi people" waiting for us to liberate them from Saddam Hussein. There were several factions of religious Shia Muslims, several factions of religious Sunni Muslims, some secular-minded men and women (who all have loyalties to clans that as a whole are either Shia or Sunni). There were Christian minorities, Jewish minorities, two competing armies of Kurds. Most of these groups were represented by open or clandestine political parties, many of them ready to bring armies or militias into existence once Hussein's government was knocked over by the U.S. Not exactly a foundation for a pluralistic democracy to flourish within six months to a year.

We could have, possibly, flat-out conquered Iraq, if we put sufficient resources and effort into it. We conquered Germany. We didn't go in to "liberate the people of Germany from Adolf Hitler." They were the enemy. We conquered their land, we established our armed forces as THE source of law and order. We called the shots. Nothing moved on any large scale unless we said so. We set up military occupation zones. THEN we picked those we wanted, and established them as the nucleus of a new, more or less democratic, German government. They set up elections that elected the government we appointed.

In Iraq, we went in "to liberate the people of Iraq." So, we had to deal with whichever Iraqi politicians and would-be politicians came out of the woodwork to say "Here we are to represent the people of Iraq." Our legacy may be an Islamic Republic. It might be Shia, aligned with Iran. It might be Sunni, aligned with al-Qaeda, or hostile to al-Qaeda. Whatever we leave behind, whenever we leave, it will not be a free, happy, prosperous, democratic nation. We are already being undermined by our own Iraqi allies. Aside from wanting our troops to die for them, they would like us to get out of their way as soon as possible.

The best thing for the United States about a Shia-led Islamic Republic is that bin Laden and Zarkawi despise the Shia, as heretics to Islam. They love each other the way the Spanish Inquisition loved Dutch Protestants, or the way Sir Francis Drake loved the Spanish Armada. Under Shia rule, Iraq will not be open to use by al-Qaeda as its base, but it won't remain close to U.S. policy either. That is about what we had to deal with when Hussein al-Takriti was running Iraq. Back where we started from, with over 2000 dead.

Murtha is correct: our armed forces have done everything that has been asked of them, that could be asked of them. Our soldiers are doing their job superbly, but our nation is not willing to make real sacrifices to back them up. Oh, there are many Americans collecting videos and DVDs for the troops, putting together care packages, sending emails to encourage them. All very good. But how many people have volunteered to give up half of their tax cuts, to buy the troops armor? Yellow ribbons don't stop explosives.

When American forces started moving into Vietnam, Ho Chi Minh said that as American soldiers came home dead, American mothers would want to know why. He knew that there was nothing going on in Vietnam which would pose a serious threat to Aberdeen, South Dakota. It took some time for most Americans to recognize that. As with the Iraq war today, civilians didn't have to share the sacrifices being made by the troops on the front lines. In the end, we weren't willing to make any real sacrifices to win.

The Republican leadership correctly says that we may suffer some losses in the war against al Qaeda if we pull out of Iraq. But they cannot inspire themselves, much less their constituents, to actually commit to do what it would take to win. It would require money – but we won't raise taxes to pay the bill. It would take a mobilization of troops – but we can't get that many volunteers, and we won't support a draft. It would take industrial output and massive overtime – but we depend for our industrial goods on China, Korea, and other nations that cannot be mobilized for our war effort as American industry was mobilized for World War II.

All of this should have been considered before we went into Iraq at all. If we had never invaded, Iraq would not be the free-fire zone for al-Qaeda that it has become. Saddam Hussein was brutal, ruthless, self-centered. So are most of the likely future leaders of Iraq, those we have brought to power. Saddam Hussein was a mortal enemy of Osama bin-Laden, who called his regime socialists and apostates. Now, Iraq is wide open for al-Qaeda, because we took Hussein out, and we cannot keep al-Qaeda out.

We should not have gone into Iraq unless we were either prepared to conquer the country, which would not have come cheap, or we had reliable allies to fight for, who could govern the country successfully. We didn't have any allies worth fighting for, but our president sold us on a cheap and easy war. There used to be an argument that "I opposed going in, but now that we are there, we have to finish the job. It would be even worse if we pulled out." It is becoming clear that we can never "finish the job," no matter how long we stay, and the longer we delay, the worse it will become.

And so, the Bush administration have shown themselves to be that classic Maoist cliche, a paper tiger. Rep. Murtha is more than correct to say of Vice-President Cheney, of Defense Secretary Rumsfeld, "I like guys who've never been there that criticize us who've been there. I like that. I like guys who got five deferments and never been there and send people to war and then don't like to hear suggestions about what needs to be done." Murtha knows from personal experience what it takes to fight a war, what it takes out of the men and women on the front lines, and what it takes to win. Nobody in the Bush administration has a clue.

Intelligent Voters in Dover

The scientific content of so-called "Intelligent Design" could be easily set forth in a two-page mimeographed insert. The alarmed response of many credible scientists to simple mention of a controversy, however silly, has undermined the objectivity of scientific theory. Pat Robertson has stabbed the Discovery Institute in the back, by announcing that rejection of "Intelligent Design" curriculum is rejection of God. Articles issued by Associated Press and Knight-Ridder News Services show they have no clue what is really going on.

But the voters of Dover, Pennsylvania showed genuine intelligence. By all reports, the dominant mood that defeated eight incumbents for re-election to the local school board was "Don't we have much more important and pressing business to deal with? Please get this nonsense out of our face."

The pending federal court decision, on which so many have wasted so much time and money, about so little, may be moot before it is decided. Several incoming school board members have announced that they oppose spending taxpayers' money on any appeal, no matter how the court rules. Science classes will continue to teach sound science. And it appears that the existence of competing theories will not be hidden from students either.

The controversy exposed the usual collection of misconceptions. A local barber is quoted in the New York Times as saying "I just don't think we got here by some big bang." The so-called "Big Bang" is a well-established theory of astronomy, having nothing to do with whether life on earth emerged from a long process of evolution, or a rapid process of creation, with or without an intelligent designer motivating either process. For those who uphold the authority of Holy Scripture, it is entirely consistent with Genesis 1:3. The emergence, or creation, or accidental beginning, of life on earth, happened long after the explosion of light that began the universe we know.

Television tycoon Pat Robertson has considerably less authority to speak for God than Venezuelan President Hugo Chavez has to speak for George W. Bush, but Robertson runs his mouth on behalf of the Creator several times a week anyway. Never before has anyone subordinated an omnipotent deity to the will of a few thousand humans. Robertson assured "the good people of Dover" that they had just "voted God out of your city." God may be surprised to learn that He is less omnipresent than most of us learned in Sunday School.

The more significant result of Robertson's remarks is to undermine the Discovery Institute's claim that "Intelligent Design" is not a religious teaching at all, but a valid scientific theory. No doubt the institute will disassociate itself from Robertson's remarks. "Intelligent Design" does not even name the designer, merely teaching that there must have been one. So whatever the good people of Dover rejected, it was not God. There may be an intelligent designer, who may in fact be God, as millions of scientists who are practicing Christians (but not necessarily Christian Scientists) have always believed. And don't forget the millions of scientists who are Muslims and Jews. The odd thing about intelligent design is: not one commonly accepted scientific theory needs to be set aside in order to accept that simple, but unprovable, premise.

Which is what makes the entire "Intelligent Design" movement so silly. If it is science, it doesn't add anything new. It just adds some speculative commentary on the existing data. If it is a Trojan horse for Young Earth Creation mythology, then it is not science. The truth seems to be so muddled that everyone who opens their mouth on the subject gives the Design a new meaning. That in turn makes it impossible to teach it coherently in the science classroom.

This does not mean that voters endorsed evolution, as the initial AP/Knight Ridder coverage would have it. This election was not a "victory for Darwin's theory." Voters appear to have been more concerned with letting science teachers do their jobs than with lining up for or against any theory. Truth doesn't change because of a vote, no matter who wins the election. What is true is true. What can be verified by experiment can be verified by experiment. What cannot be proven by scientific method cannot be proven by scientific method. Darwin may be correct, or he may be way off base, but that didn't change because of a school board election.

The common sense of the voters and new school board members in Dover is a breath of fresh air in an old and stale debate. Most of the incoming board members support teaching Intelligent Design in elective classes on philosophy, humanities, comparative religion or history, to help students develop critical thinking skills. They simply don't intend to mandate reference to it in science classes. Different members refer to ID as "a matter of the heart and soul," as a "faith based concept," and point out that it cannot be tested, proved, or disproved by existing scientific methods. The lawsuit on the subject "has already taken too much time from the district's primary business of educating students."

Not only has reason prevailed, but reason has prevailed with due respect for the spiritual needs and values of the community and the people who live in it. It has prevailed through the democratic process, without waiting for a mandate from a federal judge. The voters of Dover have broken the myths of "red" and "blue" states, of science "vs." faith, of any political party having a monopoly on either one.

Science classes will teach science, not wishful thinking. Science includes knowledge that can be tested by experiment and verified by measurable results, about how the world works. And to God be the glory – of course science cannot prove that, but to those who believe, no proof is needed. To this outcome a patriotic American, respectful of the values that emerged from the American Revolution, can only say: Amen, brothers and sisters, Amen.

Alito: Will Justice Be Served?

George Will vs. Himself on the role of the Supreme Court of the United States

George Will is a thorough student of history and government. He has a keen eye for the foundation of any issue, and a sharp intellect. In his widely syndicated Op-Ed columns, he generally cuts through prevailing political rhetoric, to identify fundamental questions of principle. Then, if it is convenient, he meanders off into meaningless muddle, determined to discredit whoever may be in the way of the outcome he desires from a political debate. He totally loses sight of the principles he first enunciated.

So it is with his initial response to the nomination of Samuel Alito to the Supreme Court of the United States.

There are demagogues abroad in our nation, so fervently determined to get their personal preferences written into law, that they forget there is a constitution which defines (and limits) the powers of our governments. Not so George Will. He never insinuates that the primary criterion for a justice of the Supreme Court is "will this candidate vote to approve what I want?" There are self-styled conservatives who have forgotten that we have a government of limited powers. All they want is a compliant set of justices who will give the legislature a free ticket to do anything it chooses, so long as they command a legislative majority. George Will does not stoop so low.

Will recognizes that "Our nation properly takes its political bearings, always, from the Constitution, properly construed on the basis of deep immersion in the intellectual ferment of the founding era that produced it. That is why our democracy inescapably functions under some degree of judicial supervision." This man has clearly read The Federalist Papers, both Hamilton's contributions and Madison's, as well as those by John Jay. No doubt he is also familiar with Chief Justice Marshall's reminder that "it is a constitution we are expounding."

Will asserts that "The nation has long needed a serious debate about the proper nature of that supervision." The question he proposes we should debate is, "Should the Constitution be treated as so much plastic, so changeable that it enables justices to reach whatever social outcomes – "results" – they would consider desirable? If so, in what sense does the Constitution still constitute the nation?" Will expresses conviction that the Alito nomination will generate that debate.

But Will is drawn off the high road of principle, to chase a will 'o the wisp into a bog of political name-calling. What he most fervently desires is for our discredited, incompetent and deservedly unpopular president to use this nomination as leverage "to challenge his Democratic critics." Accordingly, Will asserts that these critics have only two arguments to make against Alito's confirmation, both of them "intellectually disreputable." Indeed, the arguments Will offers to put in the mouths of senate democrats ARE intellectually disreputable. Anyone critical of Alito's record, Democrat, Republican or independent, would do well to refrain from using them.

Instead, let us hope that there are women and men serving in the United States Senate who will put Judge Alito to the test of the very questions George Will poses. The debate he eloquently defines should not be aborted by the fait accompli he seeks.

Would Judge Alito treat the Constitution as so much plastic, so changeable that it enables him to reach whatever results he considers desirable? Judge Alito wrote a dissenting opinion in 1991, to uphold the constitutionality of a Pennsylvania statute requiring a married woman to notify her husband before getting an abortion. Was there a sound constitutional basis to his dissent? Or did he treat the Constitution as so much plastic, to enable him to reach the social outcome he preferred? The result he arrived at is not what the senate should examine. The caterwauling of pro-abortion and anti-abortion lobbyists should be a mere annoyance to the confirmation process. How he arrived at that result, how he construed the constitution, whether he was simply overriding the plain meaning of the supreme law of the land to advance his own agenda, is of critical importance.

What has Judge Alito recognized as the proper nature for judicial supervision of legislative acts? Would he agree with Alexander Hamilton that "The complete independence of the courts is peculiarly essential in a limited constitution" by which Hamilton understood "one which contains certain specified exceptions to legislative authority"? (Never mind that shabby subterfuge, "a living constitution," this is a limited constitution we are expounding). Can limitations of this kind be preserved in any other way than through courts of justice "whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void"? Is there any way to reserve the rights and privileges of the people in any practical sense without this judicial supervision?

We have, today, many voices raised by state and federal legislators, asserting that courts are usurping distinctly legislative functions. In light of Madison's assertion that "no man may be a judge of his own cause," and that this applies still more to an entire body of men, how has Judge Alito, in his lengthy judicial career, distinguished between usurpation of legislative functions, and declaring legislative acts that are contrary to the constitution void?

Let us not neglect to inquire about constitutional issues of vital concern to millions of working families across the nation, a large portion of them Evangelical Christians, a good part of the rest Christians of the Roman Catholic faith. What is Judge Alito's record on questions that have come before the federal courts concerning the competing interests of employers and employees, of corporate distributors and individual consumers? How does he ground his decisions on such questions? Has he found a clear and unmistakable command in the Constitution, to which he is merely an obedient servant? Or does he twist the broad language of that document, to arrive at a result that pleases him?

Certainly both judges and legislators are capable of making mistakes, and have each been wrong at times. These are important questions, which should be presented to Judge Alito in a manner that provides the nation with the debate that Will succinctly poses. The answers to these questions do not fall neatly into "conservative" and "liberal" stereotypes.

For example, many congressional "liberals" have a knee-jerk addiction to broad federal regulatory powers. Even the devastation wreaked by George W. Bush exercising such powers has not cured this predilection. One of Chief Justice Rehnquist's contributions, during his term on the court, was to lead the way in decisions curbing congressional use of the power to regulate interstate commerce, which has increasingly been used as a free ride to regulate anything and everything.

However, the specific cases brought before the court nullified federal laws which banned guns from the vicinity of schools, and would have allowed federal civil suits by rape victims against alleged perpetrators. Perhaps a future decision would strike down the absurdity of applying a depression-era law regulating agricultural commodities, to justify federal prosecution of a woman for "interstate trafficking in pornography" over poor judgment in taking family photos with a throwaway camera (manufactured in another state). But note well, that state laws providing lengthy prison terms for carrying guns near schools, and for rape, were left entirely intact. The court simply found that these did not fall under the enumerated powers delegated to the federal level of government by the Constitution.

At least two Supreme Court decisions of the past fifteen years have pitted a gay rights agenda on the one hand against liberties guaranteed by the Bill of Rights on the other. The better known was Boy Scouts of America v. Dale. A less well known, but equally important case, was John J. Hurley and South Boston Allied War Veterans Council, v. Irish American Gay, Lesbian And Bisexual Group Of Boston. In both cases, the court refused to define a private organization's free association and free speech as a "public accomodation" that anyone could crash at will or by law.

Rehnquist and Scalia joined both majorities, Stevens and Souter dissenting on the Boy Scout case, while Souter wrote the opinion of the court on the Boston case. On the other hand, when the general right to privacy of all citizens coincided with the preferred outcome of two homosexual plaintiffs, Lawrence v. Texas was decided in a manner that made advocates of unfettered legislative discretion howl.

Indeed, let us have the debate on the proper nature of judicial supervision. Does existing judicial precedent intrude on proper legislative functions? Or does it protect the rights of the people from legislative tyranny? Are the critics of "judicial activism" seeking to protect the people from sweeping judicial mandates? Or are they seeking the "freedom" to impose restrictions on the people? Does the Constitution immunize commercial businesses from regulation intended to protect employees and consumers? Communists have always charged that it does. Does Judge Alito agree? Is a mutli-billion dollar corporation a “person” in the eyes of the Constitution, equal to any other person?

Let us have no argument for some kind of "balancing act" as to the supposedly "conservative" or "liberal" bias of the Supreme Court. Will pre-emptively criticizes that subterfuge, and it has no place in the confirmation process. Let us have specific examples of how, and when, the constitution has been treated as mere plastic. Let us have Judge Alito's forthright analysis of such examples. Let the senate provide the American people with an open and detailed factual debate, examined through the lens of time-honored legal standards. And then, let each senator consider carefully whether this is a man who can be entrusted to expound this constitution, as a constitution, accurately and honestly. Because it is the senate, and the senate alone, that must consent to the nomination.

Homework Can't Teach

I know at least one of the things that is wrong with American education today. Students are expected to learn their basic skills from doing homework, not from introduction, instruction and explanation in the classroom. I'm not sure what does get done in the classroom, but it seems the most fundamental teaching is absent. Once upon a time, homework was an exercise to practice skills that had first been taught in the classroom. No more.

If by some chance, anybody is actually reading this site (God be praised), among those who read these words will no doubt be a few teachers. I mean, individuals who have pursued professional training, dedicated themselves to teach as a profession, who go into classrooms every day and work hard. Among those teachers will be some who are competent, even exemplary, who teach their subject effectively. Such teachers will naturally object to the broad sweeping statement in the first paragraph. Rightly so.

I am sure there are many competent teachers who somehow manage to impart knowledge and skill and cultivate aptitude. The best evidence that this is so, is that millions of Americans show considerably more ability to think and do productive work than the abysmally deficient example offered on a daily basis by our president. Somebody must be doing some effective teaching. Maybe it even happens at Yale sometimes. I once met a Yale graduate who seemed intelligent and competent. Unlike most Harvard graduates whose written work I have read, she also knew how to spell English words correctly and consistently.

What do I know? I do a lot of tutoring with students struggling with homework, who have no idea where to begin. I'm not certified. I'm not paid. I show up at the library in a Boys and Girls club. I drop by friends homes who have school-age children. I get called over to a table in the break room at my job driving a paratransit bus, to help a driver who is pursuing a degree while working full time, and is trying to master a course in mathematics as applied to cryptography.

I'm not one of those opportunistic "tutors" who get paid $20 an hour and up to spend an hour or two for a few weeks with children from "failing schools" on funding from the No Child Left Intact law, then walk away when the money runs out, and never see them again. (I looked into such a job once. I was horrified by the attitude of the petty little entrepreneur who ran it, who could talk about nothing but that people who worked for him last year really made a lot of money. I think HE must have billed $40 per hour for each child allegedly served.)

As a matter of fact, I suspect that the lack of teaching in the classroom is closely related to the government's, and the education profession's, addiction to standardized tests. By "the education profession" I do not mean dedicated, certified, experienced, hard-working professional teachers. I mean, the gurus that dominate the upper levels of education and administration with new fads, pet theories, and the bright ideas that are passed off as Ph.D theses in a world overcrowded with knowledge. These gurus exist in every profession. They cover the ideological spectrum from "left" to "right" – as if those archaic terms have any meaning.

Here is what I do know: at the beginning of the school year, a young lady in 3rd grade named Tinika walked into the library with some subtraction homework. It took me four hours to work through it with her. Why? Because she had no idea what to do with it. I don't give answers, I ask questions that lead the child to find the answers for themselves. But that wasn't enough this time. I had to teach her what subtraction is, teach her what to do with the numbers on the page, teach her how to carry or borrow or regroup. (Each of those terms is a slightly different approach to doing the same thing. No doubt someone got a Ph.D degree, an article published in a professional journal, or a book published by a textbook company, for coming up with each "new" approach.)

There was no deficiency in Tinika's brain. How do I know that? Because the second day, the woman who runs the library only needed to spend two hours with her. The next day, I only needed to spend one hour with her. The next week, Tinika breezed through it all by herself, even though the problems were getting more difficult. Once we taught her how to do subtraction, she took off on her own. The problem was, nobody taught her how to do subtraction at school. (An even more mindless use of homework: I see first graders coming in with homework. They are expected to follow written instructions – but they have yet to be taught the fundamentals of reading. Homework uber alles!) Nobody should be given homework sooner than 4th grade. The idea that we will produce highly educated advanced human geniuses by cramming them early is ludicrous.

Nobody in the school system responsible for Tinika's education seems to teach much history either. I was helping Tinika find a book to read one day, after she finished her math. One of the books on the shelves was a child's biography of Malcolm X. Tinika looked at it, and asked "He go to Malcolm X school, right?" I said, no, there was no Malcolm X school when he was a child. "The why his name Malcolm X if he don't go to Malcolm X school?" I should have known nobody was teaching anything about Malcolm X in that school district. Most of the children at this club are up in each other's faces all day long, "you're darker than me, you're nappier than me, you're ugly, ugly ugly." Nobody who understood Malcolm X would indulge in that foolishness.

Nobody has taught them anything about "Black is beautiful." I'm trying to find ways to do that. My melanin-deficient skin and hair that is a mix of straight Germanic and curly Jewish shouldn't be an overwhelming obstacle. I'm reasonably certain that my mother's mother's family includes some runaways from colonial Virginia, both European and African, as well as some east Tennessee Cherokee. If the One-Drop Rule were consistently applied, two thirds of the population of the United States are black. That never-ending and inescapable mind game doesn't help any when trying to teach of course.

But back to quantifiable branches of education. College level. Cartesian planes and temperatures and graphing and functions and algebra. I must admit I cheated a little helping a young woman with homework in that field. When I was eight years old, I learned that to convert Centigrade to Fahrenheit temperatures, you multiply by 9, divide by 5, and add 32. Conversely, to convert Fahrenheit to Centigrade, you subtract 32, multiply by 5 and divide by 9. Simple formulas, difficult to keep straight, useful when memorized properly. Easier to apply accurately if you kinow WHY they work. Memorization alone does not give a working perspective on the relationship between these two temperature scales. But I knew these formulas. And I used them to get the graph started. Then I tried to explain what I had done. I ran into a blank wall for a while.

The problem, essentially, was to graph the relationship between Fahrenheit and Centigrade on a Cartesian plane. Of course, that produces a line with a slope of 5/9, and an x-intercept of 32. That much is easy. The y-intercept, it turns out, is -17.777777777777777777777777... (It is, if Centigrade is the vertical axis, and Fahrenheit is the horizontal axis). That would have been a harder number to work with on a graph. But to make sense of all this, I had to spend an hour explaining what Centigrade is, what Fahrenheit is, drawing little diagrams to show that one Centigrade degree is 1.8 times one Fahrenheit degree (i.e. 9/5), and one Fahrenheit degree is 5/9 of one Centigrade degree. Then I worked with x1-x2 / y1-y2 = slope, and y=mx+b.

The significant point, for the way education is being done in the USA these days, is that this was all news to the woman struggling with this homework! It was no part of the preparation for assigning these problems! Or, if it was, it was somehow presented in a manner that completely escaped her. She did not have the conceptual tools to even ATTEMPT to solve the problem! This reminded me of a course I tried to take in Fortran many years ago: the instructor, a stoned-out TA, said little more in the classroom than "find time to go to the lab and work on your program." Program? I had no clue what the language was, or how to punch the cards! I eventually dropped out of that course.)

Oh yes, the Centigrade scale is now known as "Celsius." Why? Because some dern fool in the scientific establishment decided that since the Fahrenheit scale is named after Mr. Fahrenheit, the Centigrade scale should be named after Mr. Celsius. What fatuous nonsense! Centigrade is a perfectly good name that explains what the scale is all about: 100 degrees from freezing to boiling point. A very practical approach. Who cares who invented it? It was a contribution of the French Revolution, developed by committee. Who knows anything about Mr. Celsius these days anyway? And unlike Malcolm X, who cares? But that leads to another point: why did the Fahrenheit scale set freezing at 32 degrees, and boiling at 212 degrees? BECAUSE MR. FAHRENHEIT SAID SO. Why did he say so? Nobody knows. It was completely arbitrary. It is also a pain in the neck.

Which leads to a more important conceptual point: water freezes at the temperature water freezes, with supreme indifference to what number we assign to it in our own thinking. When the air is hot enough and the sunlight direct enough to cause heatstroke, it doesn't matter what scale you measure it with, your life is in danger. You can't change that by assigning a different number. I could decide that freezing is 100 degrees, and boiling is 1000 degrees, and then there would be 900 degrees between one and the other. But why is the ratio 5:9? Because, with a Centigrade scale, it takes exactly 100 degrees to get from the freezing point to the boiling point of water. With Fahrenheit, it takes exactly 180 degrees (212 - 32 = 180). The ratio of 100 : 180 can be reduced to 5 : 9. So that's what we have to work with. But that hadn't been taught in the classroom either.

Now what, in the name of God, are the government bureaucrats, the meddling idiots in the White House, the latest gurus of the educational establishment, the little household gods of the textbook publishing industry, the school boards, the trustees, and the almighty funding sources for education, getting our teachers and students wrapped up in? Why was the above was not taught to this aspiring, intelligent, but not-yet-very-knowledgeable college student BEFORE assigning the homework which required these skills and perspectives? Why had nobody in the public schools taught the bright, eager, but clueless little Tinika HOW to do subtraction?

I really count the teachers as victims of the whole process, as much as students. If we could break up the national educational establishment, pull the federal government OUT of setting endless reams of standards and regulations, ABOLISH STANDARDIZED TESTING (which benefits only the companies that reap lucrative contracts writing and grading them), return initiative not only to local school boards but to individual teachers, and then set some minimum standards to deal with districts that are truly incompetent or indifferent, we would be a lot better off. Some of the best teachers available are not even certified. Me, for instance. But I have my limits. I am not skilled at maintaining discipline in a room of 30 or 40. I have trouble with five or six. Let a hundred flowers bloom, let a hundred schools be silent.

Equal Sentences in Kansas

Are some kinds of molestation better for children and families than others?

The Kansas Supreme Court has provoked a little squall of controversy. How? With a simple ruling that the state's criminal penalties for older teens, who molest younger children, cannot be harsher in cases of homosexual contact. Those who popped up in front of the cameras with knee-jerk howls of unholy chatter, for example, Matthew Staver of the misnamed "Liberty Counsel," have certainly revealed something about their own sleazy moral standards.

Let's take a look through the other end of the telescope. If the state should be able to impose harsher penalties for homosexual exploitation, does that mean that it should impose smaller penalties for heterosexual molestation? Are they saying that rape is not so bad if it is between man and woman? Staver said different treatment is justified by the state's interest in protecting children and families. Apparently, heterosexual molestation is better for children and families than homosexual molestation!

Maybe what these caterwauling political manipulators really mean, but don't dare say, is "hey, the older boys shouldn't do that to the little girls, but, at least they're learning to do it the right way." Maybe they also mean, "now, those sexually experienced older girls should not be pressing themselves on the younger boys, but, gosh, the little men have to learn some technique some time."

The moral and legal basis for the STATE to prohibit sexual molestation is that vulnerable children are being forced, coerced, pressured, influenced, and otherwise taken advantage of by people who are bigger, more powerful, and dominating. The victims are not mature enough, physically, emotionally or mentally, to give free and voluntary consent. The sexual nature of the offense usually ups the penalties, compared to say, theft or simple battery, because the physical body of the victim is invaded in an emotionally overwhelming way. All of that is true whether the crime is committed by someone of the same gender as the victim, or someone of a different gender.

Hypothetically, we could get into whether a specific act of rape violated the individual's sexual preference. That would mean greater penalties for heterosexual rape of a homosexual, than for homosexual rape of a homosexual. A heterosexual young lady could then get a higher penalty imposed on the male who raped her, by claiming to be gay! The opportunities for perjury and manipulation of the sentencing process, for revenge or to protect the perpetrator, are almost infinite. Do we really want to get our courts into that?

Or, perhaps the critics would tell us that heterosexual rape of a homosexually oriented teen is a good thing? Maybe it shouldn't be against the law at all? After all, it is important to straighten them out before it is too late? Even if a little violence is required?

Kansas Attorney General Phill Kline made a point that the defendant in this case is a predator with a prior record. It may be true that his pattern of behavior justifies a tough sentence. That has nothing whatsoever to do with the fact that his predation was homosexual. A heterosexual predator deserves a tougher sentence than a one-time offender too! If state law doesn't provide that option, perhaps the legislature should do something about it. The court cannot legislate harsher penalties for predators, the court can only insist on equal protection of the laws in whatever the legislature prescribes.

Staver is widely quoted as running the tired old line about an "activist court system" usurping a "legislative function." When Staver talks about "liberty," he clearly means liberty for the legislature. He advocates that legislators be freed of restraints which currently protect the liberty of citizens and our families. Remember what Mark Twain said: "Nobody's life, liberty or property are safe while the legislature is in session." The courts have not overturned any law making sexual molestation of children a crime. The courts have not mandated light sentences for this crime. The courts have simply insisted that the law apply equally to all. That is precisely the role Alexander Hamilton outlined for the courts in The Federalist Papers. Enemies of liberty who have styled themselves "Federalists" don't want to actually READ what the ORIGINAL INTENT of federalist philosophy was. It doesn't fit the prejudices of these modern demagogues and charlatans.

Kansas does, wisely, have a "Romeo and Juliet" provision in its laws. This recognizes that many young teens are voluntarily experimenting with what they believe to be "love," and should not be sentenced to long prison terms. The legislature has given the courts discretion, when the perpetrator is under 19 and less than four years older than the victim, to impose a short term or even probation. Of course, if too many loopholes are built in, predators will slip through them also. A short sentence or probation may not be appropriate to the defendant in this case. But that, again, has nothing to do with whether he is homosexual in his orientation or choice of victims.

Gay rights advocates, those who have warmly welcomed the Kansas decision, also have something to answer for. What kind of victory for "gay rights" is it, that the penalties for homosexual molestation of children by older children have been brought into line with those for heterosexual molestation? Gay rights is not about equal right to commit rape, is it? It is about partnerships freely chosen by consenting adults, is it not? No respectable gay rights activists would consider this decision to represent greater acceptance of homosexuality would they? Every act prohibited by the laws in question is unacceptable. I expect that homosexuals are no more pleased to be raped than heterosexuals are. IF this defendant is a predator, then his impending release is nothing to celebrate. Some innocent adult homosexual may be his next victim.

The next move is, quite properly, up to the Kansas legislature. Maybe they will raise the penalties for all molestation of younger children by older children. Maybe they will equalize all sentences at a lower level. Maybe they will exclude repeat offenders from the lighter penalties of the "Romeo and Juliet" law. Those choices are up to the legislators, not to the judges. There is no sign that the courts are going to rewrite the legislature's decisions.

Miered in Prejudice

No nominee for the Supreme Court of the United States should be asked, or should answer, questions about how they would decide any question that may come before the court. Nor should any qualified nominee have such a position in their own mind or heart.

John Roberts had to say it to Senator Biden, and Harriett Miers may have to say it to Senator Brownback. Supreme Court justices are not confirmed based on campaign promises to vote this way or that way on any particular issue. As Justice Antonin Scalia has pointed out many times, justices are life-tenured so they can uphold the law, not the popular will.

Prejudice means to pre-judge, to judge a matter before the facts, arguments, and applicable law, are first heard and weighed. The role of the Supreme Court in our system of government is to uphold the constitution, if necessary in the teeth of temporary popular majorities, zealous congressional crusaders, or presidents seeking to concentrate more power in their own falliable hands. Anyone who does not understand that is unworthy of the name "federalist" – because Alexander Hamilton and James Madison wrote it all over the Federalist Papers.

It is possible that Harriett Miers still favors legislation to ban or severely limit abortion. She once said that she would vote for such legislation if the Supreme Court were to allow for such laws. It is possible that time has modified her views on this subject. It doesn't really matter, because she is not running for a legislative position. Supreme Court justices do not vote on legislation.

If she holds this view, she may still, as a justice of the Supreme Court, recognize that the constitution simply does not allow legislators to intrude upon the intimate life of individuals and families, or private medical decisions, with such legislation.

She may also, as a justice of the Supreme Court, join with justices Scalia and Thomas in maintaining that the constitution does not restrict state legislatures from imposing criminal penalties on abortion. She might therefore vote to overturn Roe v. Wade. She would have to provide a well-documented opinion that Roe v. Wade was wrongly decided, that the constitution does not, and never did, impose such a limitation on state authority. That has nothing to do with whether she believes abortion to be a moral choice.

Either way, her opinion on such a question would not depend on counting heads, or on which interest groups had the most colorful literature, the hottest slogans, the most passionate orators, the most award-winning web sites. It would depend on her analysis of what the constitution does, or does not, say, what it does, or does not, mean.

There are many voices who denounced Miers's nomination, because they were not certain she would vote their way on their pet issues. Now, some of those voices are satisfied by her record that she would. Therefore, they are now announcing that it would be wrong to hold her personal views against her in the confirmation process. These voices have revealed themselves to be opportunists, hypocrites, subversives; their transparent vacillations border on treason to the Constitution of the United States of America.

If Miers has already made a decision on how she would dispose of any question that may come before the court, then she is morally and ethically incompetent to serve. It doesn't matter if she is firmly committed to preserve or to overturn any particular line of cases. If she is not mentally and morally committed to reserve judgment until a live controversy comes before the court, and then to apply the Constitution, as it is, to the arguments presented to the court, she should be denied confirmation. If the meaning of the constitution changes according to the personal preferences of those appointed to the Supreme Court, then we have no constitution at all.

If Miers is open and honest with the senate, it should be obvious whether she is qualified to serve as a justice or not. Of course she could deliberately deceive the senate by concealing her intention to rearrange the law as soon as she is safely confirmed. If any senator suspects such intentions, it is more than fair to try to expose it. But it is awfully difficult to "prove" what is truly in the mind and heart of another human being.

The ranking Republican and Democratic members of the judiciary committee have found her initial answers inadequate. If this means, they can't tell whether she has the integrity and impartiality to serve, they should insist she stop being coy. If this means, she declined to take positions on matters that may come before the court, they should back off.

It is entirely possible that no case will come before the court in the next ten years, which raises the issues most on the minds of mindless lobbyists and preoccupied senators. Perhaps Roe v. Wade will be overturned, some years after Scalia, Thomas, Roberts, and Miers have all resigned or died at their posts on the court. After all, well established law can be disposed of by federal district judges, by state courts, certainly by federal courts of appeal. The Supreme Court may not accept, or even receive, cases that reopen the legal issues most on the minds of the senate's judiciary committee.

One of the most infamous decisions ever made by the Supreme Court of the United States was Dred Scott v. Sanford. George W. Bush is fond of pointing out that he would not appoint justices who would uphold that case. It is mighty white of him to think he can sway the votes of 21st century American citizens, particularly those of known African descent, by denouncing Chief Justice Roger Taney's majority opinion. It should be a no-brainer. Had Dubya Augustus entertained the notion of reinstating Taney's finding, that individuals of African descent have no rights which federal law is bound to respect? Have some of his "advisors"?

It is worth noting, that Dred Scott v. Sanford was never overturned. No new composition of justices reconsidered the earlier reasoning, or found it to be faulted. In fact, at the time Justice Taney wrote, his opinion was a perfectly sound statement of the Constitution as it was then written. Taney accurately reflected the legal foundation that emerged from the constitutional convention, and the compromises necessary to establish any federal government that all thirteen colonies would accept.

Dred Scott v. Sanford ceased to be good law, not because of any decision by the court, but after four bloody years of civil war, and three amendments to the constitution. Those amendments were secured by a good deal of arm-twisting too. The former confederate states were denied readmission, denied their own senators and congress representatives, denied their own elected state governments, until they ratified the Fourteenth Amendment. Unfair, but gloriously to the credit of our nation.

Nobody except Eric Rudolph is prepared to fight a civil war over Roe v. Wade, or any other judicial ruling of the past fifty years or more. Nor is there sufficient consensus among American voters to amend the Constitution. There is ample room in our current jurisprudence, politics, and culture, for those who are committed to one position or another to win over their fellow citizens without resorting to arms.

Harriett Miers has been nominated to be a guardian and steward of a constitution. The sole requirement is that she understands what she has been called to do. The senate's primary concern is whether she is qualified to fill that specific role. The opinions of five million pressure groups, religious, civil, cultural, or otherwise, are supremely irrelevant.

Enduring Truths

Why political manipulation has not budged the Supreme Court

There has been weeping and gnashing of teeth by the Axis of Evil, dissatisfied with George W. Bush's nominations to the Supreme Court of the United States. Who is the Axis of Evil? Robertson, Viguerie, Schlafly, Bork, Falwell, LaHaye, Brownback... Dr. Dobson hangs out with this crowd, but I cannot characterize him with this unflattering label. Dobson's well-known books, pamphlets and inserts on family and child-raising are insightful, timely, thoughtful... excellent companions to Dr. Benjamin Spock's book on Baby and Child Care. His web site does indulge in nonsense about five year olds showing signs of homosexuality if they prefer reading to picking fights with other boys their age. Still, one can only wonder at the political company Dobson seems to keep. He ought to know better.

It seems that the Axis of Evil have been trying for twenty five years to pack the court with judges who will rule as this shady cabal wishes the court to rule. Somehow, with three appointments by President Ronald Reagan, another Reagan appointment elevating a Nixon appointee to the post of Chief Justice, two appointments by President George Herbert Walker Bush, and a measly two appointments by President William Jefferson Clinton (who found the most bland, unideological nominees imaginable), every new session of the court appalls self-styled "Christian" leaders. You would think they could be winning 6-3 decisions on a regular basis, considering Rehnquist's vote, on top of the new appointments by their favored white house tenants.

The reason these subversive enemies of the American republic cannot win is very obvious. What they seek is simply not provided for by the Constitution and laws of the United States of America. It never has. A large part of their program is hostile to the most fundamental principles that inspired our founding fathers. As judges are appointed to the Supreme Court, they come to terms with this plain and simple truth. Each justice, whatever their loud and outspoken utterances before joining the court, has recognized that they really are there to preserve, protect and defend the Constitution of the United States. They are not there to rewrite it. Every justice has done their job with integrity and respect. That is why they have disappointed the Axis of Evil.

Each justice does, of course, make mistakes. The court as a whole has made decisions that may come back to haunt us in various ways in the future. No human institution is perfect. Every human institution, including the government of the United States of America, is a reflection of the free will God allowed to his last and most complex creation. (On this note, I have news for Dr. Dobson: God does not have a preferred choice for our next justice. The government of the United States derives its powers from the consent of the governed, and God is watching to see what we do to and for ourselves.) The court has for the most part stayed within the boundaries of fine-tuning the details by which broad, fundamental concepts apply to sticky, real-life controveries. It has not thrown the plain meaning of the Constitution out the window, to pursue any political establishment's personal preferences.

Justice Scalia has long recognized that there really IS an Establishment Clause in the First Amendment. It really does say that "Congress shall pass no law respecting an Establishment of religion." Scalia has laid out arguments that acknowledgment of God by government bodies is acceptable. He has relied on Jewish and Muslim sources, as well as Christian, to hold that our nation was founded on monotheism, not on any specific faith. He has also passionately defended the right of believers in many gods, no god, or a disinterested creator who does not intervene in daily life, to the free exercise of their beliefs. The problem the Falwells and Schlaflys and LaHayes must face is that they wish to Establish a religion. No judge of any integrity, sitting on the Supreme Court, now or in the future, could ever give them what they seek.

Justice Scalia has proposed to streamline the tangled web of Establishment Clause jurisprudence by applying a simple "coercion test." If a person is coerced by government authority to participate in a religious exercise, it would by unconstitutional Establishment of religion. No coercion, no establishment, no violation. That would indeed allow more room for public acknowledgment of God. But it would not allow for mandatory prayer exercises at the start of the school day, nor would it define the United States as "a Christian nation" – which it has never been.

Justice O'Connor has proposed a simple "endorsement test." Government action which makes members of certain faiths into "political insiders" while members of other faiths or no faith are "political outsiders" would be prohibited. Quite possibly, a sound, streamlined approach would use both tests, plus the exercise of sound judgment in close cases, such as Justice Breyer relied on to uphold the existence of a Ten Commandments monument on the grounds of the Texas state capitol. That makes two Reagan appointees and a Clinton appointee, all upholding the First Amendment, while contributing slightly different approaches to the application.

The politically insignificant debate over abortion is going nowhere for similar reasons. Despite the best efforts of its deluded friends and its avowed enemies, Roe v. Wade remains good law for good reason. The decision has no more legal significance than Justice Harry Blackmun recorded in his private notes, recently studied. All the constitution provides is that so intimate a decision should lie between a woman and competent medical advice. True, the profusion of "clinics" primarily dedicated to abortion is an obscene parody of this simple principle. They provided a convenient lightning rod for those who wished to impose their own vision on every pregnant woman. But fundamental law does not change merely because it is misunderstood or misused.

Justice Thomas often gets this wrong. Fortunately, he is only one of nine justices. The rulings of the court emerge from discussions among all nine, as well as being decided by a majority. Justice Thomas wrote that "a state may allow abortion" but the constitution does not require any state to do so. Of course he has it backward. The constitution does not allow or authorize any state to do much of anything. The states simply retain powers they had prior to ratifying the constitution. The federal government has only the powers granted to it by the constitution. The constitution does restrict the powers of the states, but is not the source of the authority that the states do possess. Nor does any woman require permission from a state to have an abortion. The question is whether a state may impose criminal penalties for abortion. The answer, in the third trimester, is yes, except if the mother's life is in danger. The answer in the first trimester is no. The state's police power has been restricted by the Fourteenth Amendment.

There is of course no clear constitutional mandate that during the first trimester, a woman has a right to abort her pregnancy. But it is clear, as Justice Louis Brandeis wrote, that the framers of the constitution intended to establish a broad right of the individual citizen to be left alone by the government. The exact boundary of this freedom was not defined, but there certainly is one. The painful task for the court has been to define what it applies to, and how, what it does not apply to, and why. The painful truth for those who wish to intrude on every aspect of other people's lives? Simply this: that all levels of government are constitutionally denied such sweeping powers.

The hierarchy of the Roman church faces a similar obstacle. The princes of the church want their own edicts to be the law of every land in the world. Again, this is contrary to the fundamental law of the United States. We fought a revolution against the rule of princes. Our government is constitutionally denied the authority to intervene, in matters the Roman church would very much like to intrude upon. Therefore, the machinery of government, in this nation, is unavailable to fulfill the wishes of the bishops. No justice of the Supreme Court, including those professing and practicing the Roman Catholic faith, have ever found a legal basis to comply with the wishes of the hierarchy. Every immigrant adhering to this faith, when they became a citizen of the United States, took an oath giving their undivided civic allegiance to the Constitution of the United States. This is part of the heritage they have bequeathed to their descendants, citizens of this nation by birth. The princes of the church may issue their commands to any person who freely and voluntarily chooses to obey. They may not, however, blackmail members of their church who hold public office, or intrude on the secret ballot of individual church members.

That the federal constitution should protect individual citizens and families against abuse of power by state governments is not new. James Madison sought such protections as part of the original Bill of Rights, but they were not adopted at that time. Less than 100 years after the ratification of the Constitution, the nation it created was split by a civil war. The wisdom of Madison's proposal was recognized as a necessity in putting the nation back together. Since adoption of the Fourteenth Amendment, the states as well as the federal government are denied authority to abridge the privileges or immunities of citizens of the United States.

There is an Axis of Evil that would like to abridge the privileges and immunities of citizens of the United States. They would like to use the machinery of state and local governments to impose their own dictatorship on any district where they can seize control. They are frustrated that the Constitution of the United States will not allow this. They are the people Madison warned us against in The Federalist Papers, when he wrote that "enlightened statesmen will not always be at the helm." Madison and Alexander Hamilton were both very explicit that it is the role of the judiciary to restrain the legislature when it exceeds its proper authority. Hamilton wrote that it is the duty of the courts of justice "to declare all acts contrary to the manifest tenor of the constitution void."

That is why no president, no new appointements, no lobbying by the avowed enemies of American liberty in our midst, have ever succeeded in swaying the court to their own perverse agenda.

Pandas in the Court

Can courts and school boards design with intelligence?

A lawsuit is now being argued in federal court in Pennsylvania. According to those taking sides, it is a dispute about the teaching of alternative theories to the evolution of life, theories different from those that more or less originated with Charles Darwin. More specifically, the legal issue is whether the local school board in Dover, Pennsylvania, has used government authority to establish a religious belief. Both sides of the dispute speak in the name of freedom. Those who support the school board defend their right to freely express their beliefs. Those who sued the school board claim their right to be free of government intruding into matters of religion.

It is a difficult case for any court to decide. Courts in the United States have no jurisdiction over matters of faith and doctrine. Nor is there any way a court could rule on what is, or is not, good science. Both religion and science deal, in some sense, with what is the truth. Neither legislative action nor judicial rulings can make any statement more true, or less true, than it is. Neither can a statement by the president of the United States, by a state governor, or by a mayor or a local school board. One of the parents suing the school board is quoted as saying "In science class, you don't say to the students, 'Is there gravity, or do you think we have rubber bands on our feet?' " This man is a life science teacher in a neighboring school district, and a Republican.

Perhaps the real problem lies in the description of "evolution" given in a recent New York Times article about the case: "Evolution finds that life evolved over billions of years through the processes of mutation and natural selection, without the need for supernatural interventions." Is that so? Well, IF the available scientific data proves that life was created entirely by natural selection, without any supernatural intervention, then we have a real conflict on our hands. There cannot both be creation by God and no creation by any God. One of the parents supporting the school board is described as "a mother of five who believes that God created the earth and its creatures."

But how could any scientific test establish the existence of God, or when and how God may have intervened? C.S. Lewis pointed out that when a prayer is answered, one can always look at the sequence of natural events that are necessarily part of the answer, and say "See, it would have happened anyway." Thus, an answered prayer can be logical proof that prayer doesn't work. The same is true of the natural events flowing from the creation of life. The data is the same, whether God intervened or not. God does not leave footprints in the fossil record. Science can only establish what is in the fossil record. Anyone who claims, in the name of science, to have proof that God was not involved is an ignorant, pompous, educated fool. Perhaps what appears to human eyes as "mutations" was actually planned and inspired by God.

Looking at the policy the school board adopted, it seems silly to blow this case up into a review of the legitimacy of any theory at all. The school board did not decide to teach some church's version of Biblical creationism as science. (Doing so was ruled out by the Supreme Court in 1987, as establishment of a religious belief by use of government authority). Nor did it introduce the controversial "Intelligent Design" curriculum into the science classroom. The school board merely required that a statement be presented to ninth-grade biology students, which said that there is a controversy over evolution, that intelligent design is a competing theory, and students who want to learn more could look up the textbook "Of Pandas and People: the Central Question of Biological Origins" in the school library. An advocacy group called the Foundation for Thought and Ethics publishes the book.

It is beyond dispute that there is controversy over evolution. There may not be one shred of truth to the criticisms of evolutionary biology, but as long as a large minority, perhaps up to one half of the American people, question, denounce, or express reservations about the theory, there IS a controversy. Allowing students to go look up an alternative viewpoint, if they choose, is hardly requiring science teachers to present it as legitimate. Intelligent Design is not really a competing theory at all. It is a brief commentary on the existing data. It does not require a whole separate text book to explain, a 2-page mimeographed sheet would do just fine. In fact, a small but growing number of Christians denounce "Intelligent Design" as blasphemous nonsense. (See the link at left, Insulting God with our Intelligent Designs). But this hardly seems to be the local school board policy that should make or break the idea. This case doesn't make sense as a test of whether it is sound science or not. The school board never said that it is.

To anyone concerned with our constitutional system of government, it is difficult to ask courts to second-guess the decisions of a local school board. The constitution assigns some powers to the federal government, reserves others to the states. States in turn assign some powers to local school districts. Since the Civil War, and the adoption of the Fourteenth Amendment, the constitution also reserves certain rights to the people that neither state nor federal governments may over-ride. When the constitution assigns authority, it does not, and can not, assume that whoever exercises this authority will always make the right choice. Everyone makes mistakes. The constitution tries to assign who should have the authority to act. It tries to define how those with power can be held accountable.

An unconstitutional act means that some level of government has stepped outside of its authority, has claimed a power that it does not rightly have. It is not enough that someone thinks a decision by the school board was a bad idea. Is there any consistent legal principle that can give a school board authority to define curriculum, then intervene in the details to say "No, that was the wrong choice to make, you should have done this instead?" Today it may be an injunction against so-called "Intelligent Design" curriculum. Tomorrow, it may be an injunction by another judge in a different district against teaching the theory of evolution at all. True, teaching religion in public schools does exceed the authority of any government body. But acknowledging that a large part of the American people believe in and worship God does not. (The odd thing about intelligent design programs is that they never mention God. Maybe the intelligent designer is an intergalactic supercomputer?)

However the court rules, the media and the high-powered advocacy groups on each side will probably spin the ruling in ways that are not justified by the facts or the law. If the judge rules that the school board is within its lawful authority to make this decision, the headlines will read "Federal Judge Supports Intelligent Design, Downplays Evolution." In truth, the judge could personally believe that the school board is absolutely wrong, and still rule that they are within their authority. If the judge rules that the school board has exceeded its lawful authority, the headlines will read "Federal Court Declares Darwin is Good Science." The judge could be a firm believer in so-called "creation science" and still rule that the board had no legal authority to adopt the policy at issue.

A better school board policy might be to develop an introduction to natural science classes, including astronomy, geology, and biology, along this line: "The facts taught in this class are based on human observations and measurements, using advanced technology and mathematics, to study the material world. The theories taught in this class are based on that data. None of the information taught in this class does, or can, provide any basis to "prove" or to "disprove" any religious belief as to creation or intervention in human affairs by any god, or the accuracy of any divine revelation. That is simply beyond the capacity of any science. Students may or may not personally agree with some of the material taught, but should be familiar with the theories commonly accepted in science, and how they were developed. Material on some alternative perspectives is available in the library."

Most science teachers would deny that a practitioner of Vudun has the power to inflict pain on a person by sticking needles into a doll. But there is recent evidence that a medically documented process does exist for creating zombies. As for the more conventional Christian practice of laying hands on a sick person, an honest biology teacher would acknowledge that we don't scientifically know how effective it is, or why, but when a known medical cure is available, that cure should be part of a prudent treatment process.

Faith healers have been known to kill patients by "ending the pain" of appendicitis through prayer, only to see the patient drop dead because the appendix has burst.But that doesn't mean that faith and prayer have never healed. A recent article in National Geographic described a child being treated for leukemia receiving a transfusion of cord blood cells, and mentioned that his parents had been praying for hours. That is a good combination: all that science allows us to do for ourselves, and all that God has provided us to seek divine intervention. It worked well too: doctors never saw this treatment work so well and so quickly. It's time to stop posing science and faith against each other, or demanding that either one should be twisted to accommodate the other.

When Life Begins...

...or truly, when life began!

The common phrase "life begins at conception" only skims the surface. Life began long before conception.

Every ovum and sperm are alive. They are living cells before they unite to form a zygote. Those that do not find a cell from the opposite gender to unite with, are alive until they die the death of one-celled life. Tragically, they cannot reproduce by fission and live indefinitely. But the sperm cells at least have the self-consciousness and mobility of many protozoans. Fortunately, they do not possess the consciousness, the fear of death, the thrill of the chase, portrayed in Woody Allen's movie. Sperm cells, while they are alive, do not appear to possess souls. They simply do what they are programmed to do.

The truth is, if we wish to define "when life begins" we must go all the way back to the beginning. Because there is a continuity of life from every living human being, back to the zygote from which they grew, to the ovum and sperm which united to form that zygote, to the ovaries of the mother and testicles of the father from which the ovum and sperm cell came, and so on through every generation.

Life began either with the first humans, or with the first prokaryotic cells in the warm waters of a primordial sea. That depends on whether the creation of humans, adam, male and female, when God called their name adam, was a distinct act of physical creation, or was the spiritual act of breathing into the nostrils of an existing primate, so that "man became a living soul." But that debate need not be settled here. Whether humans were created 6000 years ago or 50,000, as a distinct act or by divine breath imparted to an existing primate, or as the random chance of a morally neutral universe, it remains true that our life began long before any individual conception.

The real question then is when a distinct and separate individual human life exists, apart from and independent of his or her parents. Human society, including Judeo-Christian society, has never been consistent about the answer to that question.

In order to create a new human being, millions of sperm cells must die, competing with each other to be the one in a million that actually fertilizes an ovum. In order for pregnancy to be possible, twelve ova a year must die, every year of each woman's life, between puberty and menopause. These are not mere strings of coded chemicals, they are living cells. Only when a woman becomes and remains pregnant is this process of ova dying suspended temporarily.

Perhaps we should establish a process of adoption for the sperm that otherwise tragically die, or the ova literally flushed down the toilet. Because the natural, divinely-ordained, process for producing a new generation of live individuals, has always involved the sacrifice of millions of living cells.

But let's examine the other end of the maturation process. There have been many human societies that entrusted parents, or the eldest patriarch of a family, with literal authority of life and death over their offspring or juniors. Kill a member of another family, you are a murderer – that family has the right to kill you, or any member of your family they can get their hands on. Kill your own children for disobedience, that is your business. That was the law of Rome and Babylon, and traces of it can be found in the Old Testament, as well as in the Q'uran. The ancient Greeks practiced infanticide of those babies considered too weak to live long anyway.

There is a certain logic to such customs. That is not the same as morality, but there is logic. Infants cannot survive without the care of their parents, so are they truly independent? If the parents abandon them, what rights do they have? Parents today in America are still known to say to their teen-age offspring "I brought you into the world and I can take you out of it." A good number of devout, right-to-life, Christian parents say that, when they are angry and frustrated enough. Of course, they don't really mean it. And we do not, as a matter of law, recognize the right of any parent to act on that expression.

There is no direct Biblical reference for the proposition that "life begins at conception." God instructed the Hebrews in Leviticus that "the life of the flesh is in the blood." This suggests that a distinct life comes into being when there is an independent circulatory system in the fetus, and not before. Leviticus 17 does not discuss fetal viability, it prohibits those in the original Covenant from consuming the blood of animals they have killed for food. God also says "I have given it to you on the altar to ransom your lives, for it is the blood that ransoms in exchange for life."

Leviticus 22:27 requires that a bull or goat offered as a sacrifice must be "seven days under its mother" after birth – because the newborn was not regarded as a viable living creature until it had lived eight days outside the womb. Numbers 3:15 counts "every male from a month old and up" to number the Levites, again, because a high rate of child mortality meant that until a baby survived a month, it was not counted. Of course none of this means that a two week old baby may be wantonly destroyed. None of this would be accepted by an Orthodox Jewish rabbi as condoning abortion, unless the mother's life were in danger. But it raises questions whether we can define by the action of the criminal law that "life begins at conception."

It is beyond dispute in the United States of America that once a baby has a physical, biological existence outside of its mother, it is a distinct and independent life. The fact that it cannot live without its mother nursing it, or mother and father feeding it with a bottle, that it cannot change its own diapers, that it cannot wash itself or seek medical treatment for itself, that it cannot clothe itself, that it cannot earn its own living, does not give the parents any right to destroy it. Most states do have laws allowing the parents of a new baby, if they are unprepared to assume responsibility as parents, to abandon it in a warm, safe place where it will be found and nurtured by others. That is called a safe haven law. But the baby is not merely alive, it is a distinct individual life.

It is also beyond dispute that a man and woman may condemn millions of sperm cells to certain death, without making any effort to save them or find them each an ovum to fertilize. It is beyond dispute that a woman may allow her menstrual cycle to proceed, without making any effort to fertilize the individual ovum in her fallopian tubes. Indeed, most churches teach that until she is married, she must allow these monthly ova to die without fertilization. Our public debates concern the specific form of life that exists after a living sperm cell and a living ovum have united to form a living zygote. Is this living cell part of the woman in whom it lives, and outside of whom it cannot exist? Or is it an independent individual?

Or maybe the zygote is not even inside a womb. Suppose medical technology advances to the point that doctors can scrape a few hundred skin cells off the arm of a patient with pancreatic cancer. Suppose they can take those cells, inject the patient's DNA into an ovum empty of its original DNA. Suppose they could grow that cell into a blastocyst, tease the stem cells to grow into a new, healthy pancreas, which is a perfect match for the patient. An inoperative cancer, carrying a life expectancy of one week to six months, becomes operable, with an open-ended life expectancy. There will be no problems with rejection by the patient's immune system.

Is the zygote an independent life, entitled morally and legally to grow into a new individual human being? Or is it part of the life of the patient whose DNA it matches, which may be teased into becoming a new pancreas? We know it has life. Life began at the first moment when God said "Let the waters bring forth the living thing that hath life." A new pancreas would have life. If the zygote did grow to the point that it could survive as an independent being, outside of any natural or artificial womb, then it would be a distinct individual. But then it would be a clone. There is overwhelming sentiment in our nation that human beings should not be cloned.

If someone does illegally clone a human being, those responsible should be placed in custody where they cannot repeat their crime. But what if there is already a fully developed cloned baby? Should that baby be destroyed as the fruit of a horrible crime? Or is it an independent being, entitled to protection and survival as an individual life? It is not the clone's fault that those who cloned it violated the law. And the clone will not be an adult duplicate of the person who was cloned either. It will be a baby with the same DNA, facing the beginning of its own life experiences. A younger identical twin. Who would be responsible to raise the clone? Maybe it would be better for this zygote to become a pancreas.

There are no easy answers to these questions. We should be careful not to let power-hungry manipulators reduce us to cheap slogans. Life began long before any individual conception. When does human life have a soul? When has a self-conscious individual entered the world? For centuries during the middle ages, Roman Catholic teaching said that the soul entered the fetus forty days after conception. When we know so little, it is a bad idea to pass too many laws. Whatever we do, we are likely to be wrong. That is good cause to let each individual try to do the right thing, and be responsible to God for their own choices.

Enemy Combatants

The Bill of Rights is still good law

Jose Padilla remains classified as an enemy combatant, in custody in a naval brig in South Carolina. To hear some of the analysts and amicus curiae, it may seem that the same fate hangs over every law-abiding American citizen, just as in George Orwell's 1984. George W. Bush stars as Little Brother. It may be true that the president, the brains of his operation (Dick Cheney) and the court fool (Donald Rumsfeld) aspire to hold such power. But so far, the federal courts have not conceded it to them. It is the specific details known about Jose Padilla that makes him, in particular, an enemy combatant.

There is probably nobody in the United States (with the exception of potential sleeper cells working for al Qaeda) who would want Padilla walking the streets a free man. But there has been a lot of debate over whether he should be tried in the criminal courts, or kept in military custody by order of the president. For now, the United States Court of Appeals for the Fourth Circuit has ruled that the president has the authority to treat Padilla as an enemy combatant. Padilla v. Hanft .

The big worry about this case is, how much power does a president really have to detain U.S. citizens arrested on U.S. soil as "enemy combatants" and hold them indefinitely without trial? Can the president decree that anyone he wants to put away is "an enemy combatant" and therefore deny that person access to the courts, to an attorney, to contact with family? What if the president makes a mistake? Is there no review process for whether a person is rightly classified as an enemy combatant? Are they locked in a nightmare adapted from a Franz Kafka novel?

What if the president tries this against people on a politically-motivated "enemies list"? There have been such lists in American history. Ask Charles Colson – he knows all about the Nixon administration's enemies list. It was only by the grace of God, and the courage of an FBI administrator who turned in the conspirators, that Nixon was obliged to leave office, and Colson went to prison.

But those who are worried about the civil liberties implications can exhale, and inhale again. The meaning of a ruling like this lies in the details, not in the headlines and TV sound bytes. The Fourth Circuit court did find Padilla's enemy combatant status constitutional. But the decision was on narrow and precise grounds. Further, it is clear that any American citizen similarly detained does have the right to go to court to determine whether the president acted properly in classifying an American citizen as an enemy combatant. In the absence of direct collaboration with the military arm of a declared enemy, no citizen may be so designated.

First, the court relied on specific facts. The decision did not rest on anything so nebulous as an indefinite "war on terror." According to the record before the appellate panel, Padilla "took up arms against the United States" in Afghanistan, "was recruited, trained, funded, and equipped by al Qaeda leaders" and returned to the United States with a specific mission to "continue prosecution of the war in the United States by blowing up apartment buildings in this country." Accordingly, the court referred to the World War II era decision, Ex parte Quirin, 317 U.S. 1 (1942). This case concerned a United States citizen, who entered the country with orders from the Nazis to blow up domestic war facilities. Like Padilla, he was captured before he could execute those orders. The Supreme Court allowed a military trial for Haupt, the citizen referred to, because "citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of . . . the law of war."

IF (and it is a big if considering who is running the executive branch of our government) – IF these specific facts are required by the courts to approve classification of American citizens, arrested on American soil, as enemy combatants, then this decision is not the end of the Bill of Rights. The courts have not, as yet, accepted the notion that any citizen, arrested on any theory of law or evidence, in any American city, may be declared an "enemy combatant" at the whim of the president. The sole purpose cannot be simply to avoid the inconvenience of a criminal trial, a legal defense, and a burden of proof.

This hopeful reading of the decision is fortified by the panel's discussion of a civil-war era case, Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). The Supreme court ruled that Milligan could not be subjected to military trial for his activity as part of an anti-union secret society, since his crimes had no connection to the Confederate army. "No usage of war could sanction a military trial... for any offence whatever of a citizen in civil life, in nowise connected with the military service. Congress could grant no such power . . ."). If Milligan remains good law, and the Fourth Circuit court decision accepts that it is, then only those associated with the armed forces of a declared enemy, with which the United States is at war, can be classified as enemy combatants.

It is common knowledge that the Confederate States of America were an illegal armed conspiracy against the United States, which raised an army to futher its subversive purposes. (There were at least as many citizens in the confederate states, who remained loyal to the United States of America, as there were citizens in states that never joined the Confederacy, who nonetheless sympathized with the rebellion). The CSA was a far more serious threat than al Qaeda has ever been. Milligan was subject to criminal trial in a civilian court for covert activities in support of the Confederacy. Because he was not carrying out military missions, in cooperation with the CSA's military forces, he was not subect to military trial. In modern terms, he could not be classified as an enemy combatant – Congress had and has no authority to grant such a power to the president. As the Court in Quirin explained, the Milligan Court’s reasoning had particular reference to the facts before it, namely, that Milligan was not "a part of or associated with the armed forces of the enemy”" The Fourth Circuit panel also examined Ex parte Endo, 323 U.S. 283 (1944), reviewing the detention of a "concededly loyal" citizen, not an enemy combatant. The Supreme Court concluded that detaining Endo was not within the powers of the president or congress, because detention of a concededly loyal citizen bore no relation to the prevention of espionage and sabotage. The Fourth Circuit court observed that Padilla’s detention, by contrast, emphatically does further the purpose "to prevent any future acts of international terrorism against the United States."

Constitutional law, as applied by the federal courts at this time, accepts that an American citizen who has direct contact with an enemy military force, and accepts combat or sabotage assignments from that military, may be detained as an enemy combatant. The president has no authority to designate an American citizen as an "enemy combatant" for any other reason. Anyone so designated has a well-established right to appeal to the courts, to challenge the factual and legal basis for detaining them.