Anonymity and social discord

Hyperbole has long been the political agitator’s weapon of choice. It costs nothing, and for those of the audience who are susceptible to fear it can be very effective. Now technology has given such antagonists an even greater reason to employ exaggeration. The tools of email, text messaging, and social media allow users to adopt aliases by which to disguise their true identities. This possibility means that the cost for employing hyperbole as a weapon is even lower. Whatever is said anonymously cannot be traced back to a person, so the author suffers no penalty for vile and deceitful rhetoric. The result to society has been a ratcheting up of exaggeration and lies. The shield of an alias makes it easier to use coarse language, to insult and demean those with whom one disagrees, and to cast even relatively small issues as evidence of our inexorable slide into the abyss.

There are certainly good reasons for social media platforms to support anonymity. Whistle blowers, for example, should be protected from retaliation, and the best way to allow them to present their evidence without fear is to give them a way to submit their testimonials anonymously. Witnesses to criminal behavior may need the shield of anonymity while those being charged are tried.

But anonymity is not necessary for most discourse. Anonymity is not likely to improve discussion of, say, public transportation policy. In fact, knowing the true identities of all parties to such a discussion is far more likely to result in respectful dialogue and an exchange of gainful ideas.

Spammers and scammers use fake identities to conceal their true purposes– fake names, fake email addresses, fake phone numbers from your own area code. Why do we allow this? What is the value to society to allowing people to use a fake phone number whose only purpose is to trick the person receiving the call into believing that the caller is someone nearby, someone he may know? I can think of no reason why a caller from Mumbai should be allowed to use a phone number that appears to have originated from your own neighborhood. But telecom companies no doubt make a lot of money by offering such “services.”

As for IP addresses, we could demand that Internet Service Providers (ISPs) disallow anonymous connections, that they ensure that every IP address points back to a real person at a real physical address, and that their directories of IP addresses and person names are available to the general public. That would enable any user of the ISP’s services to convert a user’s IP address to a real name, face, and physical address.

The problem with this option is that there are perfectly valid uses for anonymous connections. Users who work from home may need anonymous connections to defend against man-in-the-middle attacks. A Virtual Private Network (VPN) provides anonymous connections, and it ensures that the entire exchange of information between user and host is fully encrypted, end-to-end. VPN appliances are in common use by private citizens, corporations, and government for all of the reasons cited. So even though a VPN can enable the user to connect to servers in other countries to further disguise the true origin of the connection, it’s far too late to claw back those devices now.

Most ISPs provide some variation of a spam blocker, and a way to report spammers. That is certainly a good start, but each ISP has a different method for reporting spammers, and a different URL. Google, for example, has a special form for reporting spam. The Google form is available here: https://support.google.com/mail/contact/abuse. This form forces the user to parse the offending email into separate components: Source email address, Subject, Body, and Headers. But Comcast simply asks the user to forward suspect messages to abuse@comcast.net. These different methods are confusing to the user, and there is little evidence that they are coordinated. If you receive an email at your personal AOL email account that originated from a Hotmail user account, should you report it to AOL, or to Hotmail? In the present state of the market you should report it to Hotmail, since only Hotmail can remove that user from their subscriber database. But if the user forwards the message to AOL rather than Hotmail, will AOL in turn forward it to Hotmail? Answer: probably not.

It would be far easier for users of email clients if they could simply report all spam to one URL, and leave it up to the ISPs to monitor that URL, parse the suspect messages, and assign them to the correct responsible parties. Email clients should make it easy for users to block and report suspect messages, to flag specific email addresses as suspicious, and to whitelist addresses that the user knows are trustworthy. The email clients that are on the market today are by no means uniform in their handling of these use cases.

What about the problem of anonymity? As mentioned above there will always be a need for anonymous connections. But I would suggest that there is also a need for a system that allows users to consciously accept or block anonymous and fake users. When you log into such a system the default would be to block all anonymous and fake users, but you would have the ability to accept such users on a case by case basis. Such a system would put the user in control of the type of information he or she receives. And that is something that is sorely missing in the present market.

No one is a true libertarian

Libertarianism is a philosophy that says, in effect, you take care of you and I’ll take care of me and everything will work out fine. On the surface this philosophy seems perfectly reasonable. As I go through life I am faced with choices that I make every day. When I get paid by my employer I have money in my pocket. I can spend that money on housing, transportation, food, or education– or I can spend it on drink, drugs, or partying. If I make good choices throughout my life I am likely to be rewarded for my good behavior. If I work hard, most employers will recognize that and are likely to give me greater responsibilities, more opportunity, better pay. But if I make bad choices, if I fritter away my money on frivolity and hedonistic pleasures, I am very likely to wind up with no savings, no family, no home, no future. So if I am honest and hard working and if I save money for my future why should I pay to help those who make bad choices? Everyone should be responsible for his or her own livelihood. Those who fail to take responsibility should expect that society will not reward them for their failure.

This is a perfectly reasonable argument, so far as it goes. But it does make some underlying assumptions that aren’t obvious, and that most people don’t actually believe. The first such assumption is that everyone has an employer. The fact is that some people just aren’t employable. Persons with severe physical or mental disabilities generally fall into this category, though the boundary of this group has been eroded by advances in technology and public toleration. For example, Stephen Hawking suffered from a debilitating neurological disease (amyotrophic lateral sclerosis, ALS) and yet he was able to make tremendous contributions to physics and to the public understanding of science generally. But some people, through no fault of their own, are born with conditions that make it impossible for them to work in any capacity whatsoever. Some people develop conditions such as heart disease or stroke that incapacitate them. Most people, myself included, believe that society has a responsibility to care for those who cannot care for themselves.

Another problem with the libertarian view as I have outlined it above concerns the fact that some people are in fact capable of change. I once met a man who was a recovering alcoholic. He told me that he had once been an IBM systems salesman. At that time (the mid-1980s) that would have been a position at the absolute pinnacle of the American workforce. But he was a drinker, and his drinking consumed him. He lost his job, lost his wife and family, his house– everything. Finally– when he had reached rock bottom– he realized that he had to change his life. He joined AA, worked at it, kicked his habit, and got back into the workforce selling PC software. People sometimes can turn their lives around, can decide to remake themselves, to make amends for their poor choices. And sometimes that works. I think that society owes such people a second chance, and a helping hand up.

Mind you, I also recognize that there are some people who can never be changed. Ted Bundy is, to my mind, the quintessential example of this sort of person. He was addicted to killing. He enjoyed it, enjoyed the power he felt over his victims, and he was never going to stop killing until society put him away. Differentiating between those who are earnest in their desire to change and those who will never change is hard. My general rule of thumb is that I’m willing to give anyone a first chance to earn my trust. And I’ll offer most people a second chance, so long as they can demonstrate to me that they’re sincere– but the burden of proof is on them, not me.

Where libertarianism completely falls apart is in the broader context of society generally. Consider pollution. Suppose we have two businesses A and B, both of which manufacture the same product. Suppose further that Business A is mindful of its impact on the environment and disposes of its waste responsibly. But Business B is owned by a true libertarian who believes that businesses should only consider their own interests and profits without giving any consideration to the general condition of society at large. So Business B simply dumps all of its solid and liquid waste into the nearest river or stream and pumps all of its gaseous waste into the atmosphere. Business B will therefore have a lower cost of operation and will therefore be able to undercut Business A on price. And in the long run the market will reward Business B with more sales and profits. The inevitable end result is a race to the bottom in which responsible disposers of waste are forced out of the market and those businesses that remain are the worst polluters.

A libertarian apologist might argue that this is all perfectly reasonable since consumers can choose which products they prefer. If they want clean air and water then they can elect to purchase only from corporations that properly dispose of their wastes. But that assumes that consumers have enough information to make such choices. The fact is that businesses lie, and they have the means to make their lies seem reasonable. Cigarette manufacturers lied for decades about the relationship between tobacco and cancer. They even hired people with advanced degrees to argue that the science on the matter was not definitive. Consumers were confronted with two completely different narratives on tobacco products. The Surgeon General argued that tobacco products increase the risk of getting cancer while the tobacco companies claimed that the science was not conclusive and that cigarette smoking does not cause cancer. Only later was discovered that the tobacco companies had known for decades that everything the Surgeon General had said about their products was true. When consumers have deeply flawed or incomplete information on which to base their purchase decisions they can’t be expected to make sound choices.

No one– not even the most strident libertarian– wants to breathe polluted air or drink poisoned water. There is only one way to prevent businesses from spewing their waste into our rivers, streams, and atmosphere, and that is by enacting and enforcing regulation. Businesses that pollute should be punished for the harm they do to society. The marketplace generally cannot do that and therefore it is the responsibility of society as a whole to provide the punishment that capital markets cannot.

The ultimate problem that libertarianism cannot address is climate change. The planet’s climate is being radically altered by human behavior– that much is now undeniable. Limiting or reducing the adverse effects of climate change is something that will require the cooperative efforts of all societies on the planet. It is not a problem that can be addressed by entrusting each individual to act in their own self interest.

In contemporary discourse libertarians often argue that the regulation of business violates libertarian principles. The libertarian philosophy that applies to individuals, so the reasoning goes, should also apply to businesses as they are simply agglomerations of individuals. That philosophy holds that individuals should be held accountable for their own failings. Since the marketplace holds businesses accountable by punishing mismanagement there is no reason for society– or the government– to impose additional constraints. But that reasoning fails to account for the kinds of problems that can only be solved by moderating social behavior generally. Pollution and climate change are two of the best examples of such problems, though there are others as well. No one– not even the most strident libertarian– wants to breathe polluted air, drink polluted water, or live in a locale that is too hot or too wet for human life. And therefore no one is a true libertarian.

American conservatives are communists

After many decades of observing and participating in American politics I have concluded that American Conservatism is a form of Communism. There simply is no other explanation for the behavior of American Conservatives over the last 30 years. Don’t listen to their beguiling words about limited government and personal responsibility– look at what they do. The first impulse of conservatives, whenever they have gained power, has been to cut taxes. The advocates of this policy have long claimed that tax cuts solve every ill. They stimulate economic growth; they reduce the growth of government; and they return riches wrongly stolen from deserving citizens. Ronald Reagan cut taxes; George W. Bush cut taxes; and Donald J. Trump has recently enacted a tax cut. The only conservative president of the last 30 years who did not cut taxes was George H.W. Bush, and he was excoriated by the leaders of his party for that failure of principle.

Each of those tax cuts was specifically tailored to benefit the super super super rich. The argument in favor of this economic policy is that those with money to burn will invest it in high risk ventures that create innovation and, consequently , jobs.

The most dramatic change in the American economy over the last 30 years has been a massive concentration of income and wealth. The super super super rich have become ever more rich, while the wages of the average American worker have stagnated. The portion of personal income going to the top one percent has increased from 8.9 percent in 1980 to more than 22 percent today. And only the top two quintiles of families have seen their net worth increase between 2000 and 2011. Families in each of the lower three quintiles have actually seen their net worth decline over the same period. See inequality.org for more details.

Conservatives must certainly be aware of this massive shift of economic power. As they have reminded us at every opportunity, conservatives have a deep and abiding understanding of economics, whereas liberals only know how to waste government funds. Certainly they must view this most dramatic shift of the economy as a consequence of their own strivings and machinations.

Conservatives must also know of the revolutions of France, of Russia, and of China. They must be enough aware of historical trends to know that as wealth is concentrated in the hands of an ever diminishing minority of ultra ultra ultra rich plutocrats the masses will turn to the only option available for the redress of their disenfranchisement– revolution.

Conservatives have been advocating tax cuts that have chiefly benefited the rich for the past 30 years. Each time they achieved their goal of passing tax cuts they have claimed victory. They have repeatedly taken credit for the one governmental policy that has most influenced the structure of the American economy. Hence they must approve of the long term impact of this their most favored policy. The only logical conclusion is that conservatives are planning for the long term. They must be arguing for tax cuts because they intend to skew the economy to such an extreme that the masses are forced to rise up in revolt. In short, they must be planning for a communist revolution. American conservatives must be communists.

U.S. Government is NOT democratic

“We the People of the United States, in Order to form a more perfect Union…” Famous and stirring words. But words that leave unanswered an important question: Union of what?

The structure of the sentence is such that you would think that it is the people who are intended to be the chief beneficiaries of that more perfect union. But a careful reading of the document shows that it was really intended to form a union of states.

Article I of the Constitution vests the legislative powers of the government in two bodies– the House of Representatives and the Senate. Senators are apportioned two per state, so they clearly represent states, not the people. (Originally Senators were elected by state legislatures, but the 17th Amendment replaced that method with direct election by the people of each state.)

Members of the House of Representatives are elected directly by the people of each state, so it would seem to be the more democratic of the two institutions. But there are two additional conditions that skew the House toward small states. The first is the requirement, stated in Article I, that each state must have at least one representative. The second concerns The Permanent Apportionment Act of 1929, which fixed the size of the House at 435 members. Thanks to these two rules the House of Representatives provides smaller states with disproportionate representation. California has a population that is almost 80 times larger than that of the smallest state, Wyoming, but it only has 53 representatives in the House. So a voter in Wyoming has greater representation in both the House and the Senate than does a voter in California.

The Permanent Apportionment Act of 1929 was intended to keep the House of Representatives fixed at a “reasonable” size. It was felt that if the numbers of representatives were to increase as the population increased it would eventually result in a body too large to achieve any meaningful result.

Our Constitution was chiefly intended to protect the rights and powers of the states, not the people. (The Bill of Rights was added after the Constitution was ratified to protect the rights of citizens.) Because the makeup of the U.S. legislature favors small states over large states it does not represent the citizens of the United States in proportion to their numbers and therefore our government cannot be called a democracy– or even a representative democracy.

Should we regard this as a problem? Or should we just shrug our shoulders and surrender to the weight of history and accept the current order as sufficient for the purposes of government?

The chief problem with the current order is that the people of this country are not getting what they want from their government. Large majorities of the American people favor more gun controls, not less. Large majorities want abortion to be legal, and they want it to be available to those least able to pay for it. Large majorities want more to be done about climate change and about our crumbling civil engineering infrastructure.

But measures to make progress on these issues have repeatedly stalled in the U.S. Senate. And why? Because the people of states with smaller populations often perceive such issues as being inimical to their local culture. There are 9 states that have more than half of total U.S. population. That gives those states only 18 percent representation in the U.S. Senate. That’s just wrong– and it has resulted in a stagnant government that is stuck in the past.

There is only one way that this stranglehold can be broken. And that is by breaking the association between states and the way that senators and representatives are elected. As currently configured the federal government only has one elected person who represents the nation as a whole– and that is the President. All other elected officials represent localities. As a result the President alone represents the will of the people of the nation; all others represent the will of states, or of regions within the states.

I fully accept the principle that if either the Senate or the House were to grow without bound as the population increases they will reach a point where it will be impossible for the two bodies working jointly to govern. That is, there must be an upper bound on the sizes of each of the two bodies. These maximal sizes should be governed by the psychology of group dynamics, rather than by the numbers or geographical dimensions of the several states.

I propose a bicameral system of legislature with a Senate and a House, as we have today– but with the pronounced difference that the Senate would represent the people of the nation as a whole, while the House would represent local regions within the nation. States would continue to have the general protections guaranteed under the Constitution, particularly in Article IV. But the people would directly elect their representatives in the federal government irrespective of state boundaries.

Let us say, for point of argument, that we agree on an optimal number of X Senators and of Y Representatives. For the Senate, I propose that the entire voting population of the United States be divided into X units, call them “Senatorial Blocs.” Each voting citizen would be randomly assigned to one such Bloc, and each Bloc would vote to elect one Senator. This approach accomplishes the following objectives:

It limits the total number of Senators to X, regardless of the numbers of States in the Union, or the number of people in the voting public
It ensures that each Senator is elected by the same number of registered voters
It guarantees that the Senators would represent a national perspective, rather than a local perspective

For the House of Representatives I propose that the entire voting population would be divided into Y geographical groupings, call them “Representative Districts.” Each District would represent a geographical region of the country that contains the same number of registered voters– but these regions would be drawn irrespective of state boundaries. The voters of each District would elect one Representative to the House. The Districts should be configured as contiguous, rather than disjoint, to ensure that each District represents a locality with a distinct identity. However this principle will need to be flexible enough to accommodate special cases like Alaska and Hawaii which are not contiguous with any other geographical parts of the United States.

To see how this would work in practice, let’s suppose that the total number of registered voters in the United States is about 200 million, and that we have decided that there should only be 500 members of the House. Then each Representative District should contain a total of 400,000 voters. For some especially dense urban areas several Representative Districts would be packed in close together, while in more rural areas a region might have to span one or more state boundaries to fully encompass its allotment of 400,000 voters. The New York City metropolitan area with its more than 8 million residents might need 40 or more such districts, whereas the voters of the state of Wyoming would probably need to be grouped with those of another bordering state to form one complete district representing 400,000 voters.

This method of electing Representatives would have the following advantages:

It would limit the total number of Representatives to Y, regardless of the total number of registered voters or the total number of states
It ensures that every voter is represented by exactly one Representative
Each Representative would reflect the views of a geographic region of the country with a corresponding regional identity
Each Representative would be elected by the same number of registered voters

The conditions set forth above ensure that the two resulting legislative bodies would never grow in size beyond X for the Senate and Y for the House. And they further guarantee that the Senate would represent the perspectives of the nation as a whole, while the House would represent geographical regions with local identities. These two perspectives on the nation’s governance will, I believe, add immeasurable benefits to the long term health of the nation.

But most importantly these policies will change our mode of government to that of a truly representative democracy, since each elected Senator or Representative would be represented by the same number of registered voters as for all other Senators or Representatives, respectively.

Policies such as those outlined above could not have been implemented in 1789, as it would have required a national registry of all voters in the nation. And of course such a registry would have to be updated as voters move from one state to another, or change their names, or die, or become convicted of a crime and therefore lose the right to vote. With the technology available in 1789 it would simply have been impossible to build and properly maintain such a registry. But in today’s world of massively parallel computing systems building a registry of every voter in the country would be a relatively straightforward task. In fact, such a system would solve a number of problems that have been plaguing voting systems throughout the country. How and when to purge voters from the voting rolls? How to prevent voters from voting more than once by registering in two or more states? A national registry of all voters is by far the safest, easiest, and best way to resolve these and other security issues.

The Constitution of the United States is a marvelous construct. It represents a bold and daring break from the monarchical past. It enshrined the principle of the rule of law as an antidote to the arbitrary rule of a king. It has served as an inspiration to other nations that sought a democratic future. And in the principle of self-amendment specified in Article V it showed itself to be adaptable to the challenges and needs of the future.

But the Constitution was a product of its time. It didn’t just allow slavery to persist– it was designed to preserve slavery. It didn’t grant women the right to vote. And it was conceived as a protector of the rights of states. Only after it was ratified were the first ten amendments added as a Bill of Rights, almost as an afterthought, to protect the rights of citizens.

The Constitution followed the general pattern of the Articles of Confederation in that it was designed around States. There is certainly no need or reason to dissolve the States, as they are perfectly viable political entities that are well adapted to serving local needs. But the Legislature of the U.S. Government should represent the needs of the people of the nation as a whole, not the states in particular. And for that reason the current method of electing Senators and Representatives must change.

Written 2020-10-26

The “System” is BROKEN

A recurring slogan one heard from the radicals of the 1960s was that the “system” is broken. Some of them went so far as to claim that the structure of American society is so out of whack that it can’t be repaired– it will have to be burned to the ground and rebuilt.

Although this claim was never articulated clearly enough to know what precisely was meant by the word “system,” there was plenty of evidence that the radicals were right. The Vietnam War dragged on and on because none of our leaders wanted to admit defeat. Minorities were repressed throughout the country and prominent leaders at the national level were working actively to prevent them from being treated as equals. Several cities across America were on fire due to protests over discrimination. Pollution was fouling our air, rivers, and lakes and polluting corporations were doing everything they could to prevent the government from taking action. And the US Congress seemed to be stuck in a pattern of hysteria and inaction.

At the time I reasoned that ours is a democratic government and that as the truth got out to the American people eventually they would demand action. The crushing defeat of George Wallace and his segregationist movement in 1968, the Clean Air Act of 1970, the Clean Water Act of 1970, and the end of the Vietnam War all seemed to confirm my deductions.

But more recently I’ve come to realize that the 60s radicals were right all along. My mistake, I now see, was in believing that our government is a democracy. Yes, Article VI of the Constitution guarantees each state a republican form of government– and yes state Governors and Legislators are elected directly by the people. But at the national level our government is designed chiefly to represent the states, not the people. That’s why it’s called the United STATES of America, not the United People of America. The President is elected by a body that is apportioned by state. The Senate is clearly designed to represent states. And because of rules enshrined in Article I Section 2 of the Constitution and in The Permanent Apportionment Act of 1929 the House Of Representatives is skewed toward protecting the power of small states.

The belief that ours is a democratic form of government is deeply ingrained in American culture. It’s taught in schools, it’s repeated daily throughout all news media outlets, and it’s stated again and again as if it were an obvious truth in every political campaign. In consequence there is no perception in the general public that anything about our form of government is truly broken. But the 60s radicals were right, even if they couldn’t articulate clearly what was wrong. It’s the Constitution itself that is broken, and our national government has almost no chance of fairly representing the will of the people until these major structural flaws in our government are fixed.

I’d like to believe that we could pass a couple of amendments and thereby put our society on a truly democratic footing. But I know that the residents of small states would never agree to give up their advantage. Perhaps a national campaign to communicate the Constitution’s inherent unfairness could succeed in stirring the people to action, but I see no evidence that any such program could get off the ground. Certainly no one at the national level is arguing that the Constitution is in need of significant revision.

So at present it appears that the most extreme radicals of the 60s– those who argued that the entire system has to be torn down and rebuilt– were right. There is simply no other way for our society to restructure the national government as a representative democracy other than to burn it all down and to hope that whatever emerges in its place will in most respects be an improvement. Large majorities of the American people want more gun control legislation, not less. Sizable majorities want abortion to remain legal. Most Americans want an improved health care system. Most Americans want the government to take the lead on climate change. And yet the US Congress can’t make progress on any of these issues because it doesn’t represent the will of the people.

The obvious problem with that view is that we have ample evidence from history that chaos more often leads to autocracy than to democracy. The revolutionary fervor that led the French to tear down the Bastille eventually devolved into the autocratic imperialism of the Napoleonic Empire. The Russian Revolution led to a highly stratified and oppressive nation, not the paradisal society of equals its leaders had foretold.

There are a good many non-governmental issues that have impeded progress as well. First and foremost of these, in my view, is the absolute avalanche of misinformation that pollutes the public discourse. It’s certainly a good thing to have healthy discussions about matters of public policy, but that doesn’t seem to be the least bit feasible at present. Too many of our public leaders have advocated outrageous lies and fantasies. President Trump’s many false statements about COVID19 are but one example. If you don’t even have agreement on a basic set of facts you can’t hope to have a meaningful conversation about something truly complicated like the national economy, or immigration, or climate change.

But I strongly believe that the best and surest way to solve that problem is to change the form of our national government. Why did President Trump repeatedly lie about the lethality of COVID19? He did it to set red states against blue in the expectation that doing so would juice his chances in the Electoral College. The imbalance of our national government distorts all aspects of public discourse and national policy.

If we could tomorrow change our national government to represent the people, rather than the states, it might take 50 or 100 years to know if I am right. I’m pretty sure there is no philosopher or scholar of government who could give us a definitive answer to that question today. But the fact is that just about every other possible form of government has been tried at one time or another in the past and none has proved to be as capable of providing for the economic, social, and emotional needs of a populace as democracy.

We’ve endured much turmoil during the Trump era, but much worse is yet to come. Climate change will eventually destroy most everything we love about this country. There will be literally millions of climate change refugees vying for water, resources, jobs, and living space– many from Central and South America, but a good many millions from within our own borders as well. Environmental turmoil usually results in political turmoil. So one very likely result of the disruptions that will inevitably arise from climate change will be the very revolution that the 60s radicals sought to ignite.

Written 2020-11-15

Religion in the U.S. Constitution

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…
Amendment 1 to the Constitution of the United States

The First Amendment of the Constitution makes it clear that the United States is never to become a theocracy. The authors of the Constitution were mindful of the hazards posed by state religions of any kind, and they wanted to prevent the United States from suffering their worst effects.

Does the First Amendment protect religious beliefs, or does it protect religious practices? The wording of the Amendment seems to imply that it protects both. The phrase “the free exercise thereof” seems to encompass not just religious beliefs, but religious practices as well.

But that isn’t a plausible interpretation. Consider the following scenario. A judge, who is an ardent and practicing Catholic, is presented with a case involving a Catholic priest who is charged with pederasty. His attorney is a Jesuit who argues that the court has no jurisdiction in the case because the Vatican claims priority involving all Catholic clergy. Because the judge regards himself as a staunch Catholic, he agrees and releases the defendant to the custody of the Vatican.

Article VI of the Constitution says the following:

The Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Article VI of the Constitution of the United States

So the judge described in the scenario above would be bound to regard the Constitution as the supreme law of the United States, regardless of whatever claims the Pope might make to the contrary. And the decision to turn the defendant over to the Vatican would be an act that violates the Constitution, regardless of the wording of the First Amendment.

Consider now the case of a judge who, when he is appointed, is an avowed evangelical Christian. And suppose further that after a period of some years he undergoes a spiritual transformation in which he converts to a strident form of Islam that insists on the enforcement of Islamic Law. So when he is brought a case of robbery in which the defendant is found guilty, he sentences the robber to have his right hand and left foot chopped off.

Again, the Islamic judge is bound by his oath of office to follow the Constitution, the laws of the federal government, and the laws of the several states– NOT the teachings of the Koran, or of any other religious writing.

The previous cases involve judges who render opinions in courts of law. What about private citizens? Are their religious practices defended by the First Amendment? Imagine a devout Christian who studies the old testament of the bible and finds to his delight that Jacob had two wives– Leah and Rachel. He also learns that each of these wives had a maidservant, and that Jacob fathered children by both of his wives and by their maidservants– four women in all. Jacob was renamed Israel by God, thereupon identifying him as the patriarch of the Israelites. He thereupon deduces that God must want good Christian men to follow in this practice. So he marries four women in a state that has long since outlawed bigamy.

To consider a more extreme example, suppose that a cult of the Aztec god of war, Huitzilapotchli, takes hold in this country. The Aztecs believed that the god required regular ritual human sacrifices. So the cult leader insists on performing a ritual human sacrifice every new moon in accordance with the ancient practices.

None of these behaviors is protected by the First Amendment. In fact the only religious practices which are protected are those which do not violate the secular laws of the state, and of the nation.

Written 2020-11-25