The Trump Court, the Founders, and the First Amendment

Another free, public post at my newsletter HOGELAND”S BAD HISTORY, this time on the long, strange history of religious freedom in America and the latest religious-freedom opinion of the new SCOTUS majority: WHAT WAS FREEDOM OF RELIGION?. This newsletter is a new venture — if you like it, maybe you’ll subscribe.

One thought on “The Trump Court, the Founders, and the First Amendment

  1. It would seem that most people, even elected officials, interpret the law to suit themselves regardless of the legal niceties of the situation. The Pledge of Allegiance ends, “with liberty and justice for all.” While this is not a law, it is a principle and the overriding principle of the Constitution since no law or document written by human beings is perfectly worded. The law must be serviceable though, and not mired down in hairsplitting. Common sense should prevail. Thus it would seem that the decision to limit church gatherings during the pandemic was hypocritical since other, less august, establishments like liquor stores would have been allowed to remain open. The argument from the right was nonsensical that things like liquor stores were inferior to churches and that you cannot close one without the other. Liquor stores did not campaign to close churches and should not bear the brunt of a bad decision on the part of the Governor. Their rights do not infringe on the rights of churches to operate and vise versa. It would seem that the Governor was in a moral dilemma, and rather than look to the Constitution for guidance he should have merely consulted the principle of fairness. It would seem that if you allow things like liquor stores to open that you should also allow churches. Not to do so is hypocritical. Whether it is Constitutional or not is another question. Anyone could make a case, moreover, that their preferred activity is important no matter what it is. The Constitution may or may not privilege religion but one could make the case that golf is just as important. So, we live in a relative world. Restricting some things without restricting others is always going to be fraught with danger and yet we do that all the time on the basis of States’ rights. So, if Cuomo’s decision was right before the Civil War and not after then perhaps the Government should look at the legality of closing things down at all. Sweden did not shut down during the pandemic, for example, the most liberal country in the world. The best moral argument is that if it is good for the goose then it is good for the gander. It is an all or nothing proposition. America has not walked this moral tightrope well, picking winners and losers and caving into special interest groups. It all depends on whose ox is being gored.

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