First Amendment-More Than Just Religious Freedom

Amendment I- "Congress shall make no law (1)respecting an establishment of religion, or prohibiting the free exercise thereof; or (2)abridging the freedom of speech, (3)or the press, or (4) the right of the people to assemble, and (5) to petition the Government for redress of grievances."

The World Trade Center Mosque and the Constitution

By MARK HELPRIN

The plan to erect a mosque of major proportions in what would have been the shadow of the World Trade Center involves not just the indisputable constitutional rights that sanction it, but, providentially, others that may frustrate it.

Mosques have commemoratively been established upon the ruins or in the shells of the sacred buildings of other religions—most notably but not exclusively in Cordoba, Jerusalem, Istanbul, and India. When sited in this fashion they are monuments to victory, and the chief objection to this one is not to its existence but that it would be near the site of atrocities—not just one—closely associated with mosques because they were planned and at times celebrated in them.

Building close to Ground Zero disregards the passions, grief and preferences not only of most of the families of September 11th but, because we are all the families of September 11th, those of the American people as well, even if not the whole of the American people. If the project is to promote moderate Islam, why have its sponsors so relentlessly, without the slightest compromise, insisted upon such a sensitive and inflammatory setting? That is not moderate. It is aggressively militant.

Disregarding pleas to build it at a sufficient remove so as not to be linked to an abomination committed, widely praised, and throughout the world seldom condemned in the name of Islam, the militant proponents of the World Trade Center mosque are guilty of a poorly concealed provocation. They dare Americans to appear anti-Islamic and intolerant or just to roll over.

But the opposition to what they propose is no more anti-Islamic or intolerant than to protest a Shinto shrine at Pearl Harbor or Nanjing would be anti-Shinto or even anti-Japanese. How about a statue of Wagner at Auschwitz, a Russian war memorial in the Katyn Forest, or a monument to British and American air power at Dresden? The indecency of such things would be neither camouflaged nor burned away by the freedoms of expression and religion. And that is what the controversy is about, decency and indecency, not the freedom to worship, which no one denies.

Although there is of course no question of reciprocity—no question whatever of a church in Mecca or anything even vaguely like it—constitutionally and if local codes applied without bias allow, there is unquestionably a right to build. Reciprocity or not, we have principles that we value highly and will not abandon. The difficulty is that the principles of equal treatment and freedom of religion have, so to speak, been taken hostage by the provocation. As in many hostage situations, the choice seems to be between injuring what we hold dear or accepting defeat. This, anyway, is how it has played out so far.

The proponents of the mosque know that Americans will not and cannot betray our constitutional liberties. Knowing that we would not rip the foundation from the more than 200 years of our history that it underpins, they may imagine that they have achieved a kind of checkmate.

Their knowledge of the Constitution, however, does not penetrate very far, and perhaps they are not as clever as they think. The Constitution is a marvelous document, and a reasonable interpretation of it means as well that no American can be forced to pour concrete. No American can be forced to deliver materials. No American can be forced to bid on a contract, to run conduit, dig a foundation, or join steel.

And a reasonable interpretation of the Constitution means that the firemen's, police, and restaurant workers' unions, among others, and the families of the September 11th dead, and anyone who would protect, sympathize with and honor them, are free to assemble, protest and picket at the site of the mosque that under the Constitution is free to be built.

A reasonable interpretation of the Constitution means that no American can be forced to cross a picket line in violation of conscience or even of mere preference. Who, in all decency, would cross a picket line manned by those whose kin were slaughtered—by the thousands—so terribly nearby? And who in all decency would cross such a line manned by the firemen, police and other emergency personnel who know every day that they may be called upon to give their lives in a second act?

Michael Bloomberg, the mayor of New York, says of those who with heartbreaking bravery went into the towers: "We do not honor their lives by denying the very constitutional rights they died protecting."

Mr. Mayor, the firemen, the police, the EMTs and the paramedics who rushed into those buildings, many of them knowing that they would die there, did not do so to protect constitutional rights. They went often knowingly to their deaths to protect what the Constitution itself protects: people, flesh and blood, men and women, mothers and fathers, sons and daughters, sisters and brothers. Although you yourself may not know this, they did.

The choice is not between abandoning them or abandoning the Constitution, for although the liberties the Constitution guarantees sometimes put us at a disadvantage even of self-preservation, they also make it possible for 300 million Americans to prevail—reasonably, peacefully, and within the limits of the law—against provocations such as this.

They make it possible to prevent the construction of the mosque at this general location—with no objection whatsoever to, but rather warm encouragement of, its construction elsewhere—not by force or decree but by argument, persuasion, and peaceable assembly. These are rights that the Constitution guarantees as well, and clearly it is one's constitutional right to oppose the mosque, not to participate in the building of it, and to convince others of the same.

This small and symbolic crisis is not a test of constitutional liberties, for in regard to the question at hand the Constitution allows discretion. It is rather a test of how far America can be pushed, and America is not at all as powerless as it has been portrayed.

That is because the street in front of the mosque that the Constitution says can be built can be filled with people who can effectively protest it because the Constitution says that they are free. Those who do not fear to do so need only go there and stand upon their convictions, their beliefs, their reason, their laws, their history, and what is in their hearts.

Mr. Helprin, a senior fellow at the Claremont Institute, is the author of, among other works, "Winter's Tale" (Harcourt), "A Soldier of the Great War" (Harcourt) and, most recently, "Digital Barbarism" (HarperCollins). Copyright 2009 Dow Jones & Company, Inc.

Conservatism Remains Strong

The Death of Conservatism Was Greatly Exaggerated

In 2008 liberals proclaimed the collapse of Reaganism. Two years later the idea of limited government is back in vogue. By PETER BERKOWITZ

Last August left little doubt that a conservative revival was underway. Constituents packed town-hall meetings across the country to confront Democratic House members and senators ill-prepared to explain why, in the teeth of a historic economic downturn and nearly 10% employment, President Obama and his party were pressing ahead with costly health-care legislation instead of reining in spending, cutting the deficit and spurring economic growth.

Still, whether that revival would have staying power was very much open to question. A year later—and notwithstanding the Democrats' steadily declining poll numbers and the mounting electoral momentum that could well produce a Republican majority in the House and a substantial swing in the Senate—it still is.

Sustaining the revival depends on the ability of GOP leaders, office-holders and candidates to harness the extraordinary upsurge of popular opposition to Mr. Obama's aggressive progressivism. Our constitutional tradition provides enduring principles that should guide them.

In late 2008 and early 2009, in the wake of Mr. Obama's meteoric ascent, the idea that conservatism would enjoy any sort of revival in the summer of 2009 would have seemed to demoralized conservatives too much to hope for. To leading lights on the left, it would have appeared absolutely outlandish.

In late October 2008, New Yorker staff writer George Packer reported "the complete collapse of the four-decade project that brought conservatism to power in America." Two weeks later, the day after Mr. Obama's election, Washington Post columnist E.J. Dionne proclaimed "the end of a conservative era" that had begun with the rise of Ronald Reagan.

And in February 2009, New York Times Book Review and Week in Review editor Sam Tanenhaus, writing in The New Republic, declared that "movement conservatism is exhausted and quite possibly dead." Mr. Tanenhaus even purported to discern in the new president "the emergence of a president who seems more thoroughly steeped in the principles of Burkean conservatism than any significant thinker or political figure on the right."

Messrs. Packer, Dionne and Tanenhaus underestimated what the conservative tradition rightly emphasizes, which is the high degree of unpredictability in human affairs. They also conflated the flagging fortunes of George W. Bush's Republican Party with conservatism's popular appeal. Most importantly, they failed to grasp the imperatives that flow from conservative principles in America, and the full range of tasks connected to preserving freedom.

Progressives like to believe that conservatism's task is exclusively negative—resisting the centralizing and expansionist tendency of democratic government. And that is a large part of the conservative mission. Progressives see nothing in this but hard-hearted indifference to inequality and misfortune, but that is a misreading.

What conservatism does is ask the question avoided by progressive promises: at what expense? In the aftermath of the global economic crisis of 2008, Western liberal democracies have been increasingly forced to come to grips with their propensity to live beyond their means.

It is always the task for conservatives to insist that money does not grow on trees, that government programs must be paid for, and that promising unaffordable benefits is reckless, unjust and a long-term threat to maintaining free institutions.

But conservatives also combat government expansion and centralization because it can undermine the virtues upon which a free society depends. Big government tends to crowd out self-government—producing sluggish, selfish and small-minded citizens, depriving individuals of opportunities to manage their private lives and discouraging them from cooperating with fellow citizens to govern their neighborhoods, towns, cities and states.

Progressives are not the only ones to misunderstand the multiple dimensions of the conservative mission. Conservatives have demonstrated blind spots, too.

In 2010—in an America in which the New Deal long ago was woven into the fabric of our lives—conservatives can not reasonably devote themselves exclusively to limiting the growth of government. Government must effectively discharge the responsibilities it has had since the founding of the republic, but also those it has acquired over more than two centuries of social, political and technological change.

Those responsibilities include putting people to work and reigniting the economy—and devising alternatives to ObamaCare that will enable the federal government to cooperate with state governments and the private sector to provide affordable and decent health care.

A thoughtful conservatism in America—a prerequisite of a sustainable conservatism—must also recognize that the liberty, democracy and free markets that it seeks to conserve have destabilizing effects. For all their blessings, they breed distrust of order, virtue and tradition, all of which must be cultivated if liberty is to be well-used.

To observe this is not, as some clever progressives think, to have discovered a fatal contradiction at the heart of modern conservatism. It is, rather, to begin to recognize the complexity of the conservative task in a free society.

To be sure, the current conservative revival was not in the first instance inspired by reflection on conservative principles.

The credit for galvanizing ordinary people and placing individual freedom and limited government back on the national agenda principally belongs to President Obama, House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid. Their heedless pursuit of progressive transformation reinvigorated a moribund conservative spirit, just as in 1993 and 1994 the Clintons' overreaching on health care sparked a popular uprising resulting in a Republican takeover of Congress.

The Gingrich revolution fizzled, in part because congressional Republicans mistook a popular mandate for moderation as a license to undertake radical change, and in part because they grew complacent and corrupt in the corridors of power.

Perhaps this time will be different. Our holiday from history is over. The country faces threats—crippling government expansion at home and transnational Islamic extremism—that arouse conservative instincts and concentrate the conservative mind.

Mr. Berkowitz is a senior fellow at Stanford University's Hoover Institution.

Copyright 2009 Dow Jones & Company, Inc.

What the 14th Amendment Really Says

Birthright of a Nation

By PETER H. SCHUCK

DESPITE persistent calls for comprehensive immigration reform, the hot debate today is about an old issue: birthright citizenship.

The citizenship clause of the 14th Amendment, adopted in 1868, provides that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States...” This language has traditionally been interpreted to give automatic citizenship to anyone born on American soil, even to the children of illegal immigrants.

Congress plans to hold hearings this fall on a constitutional amendment to change that language, something even moderate Republican senators like South Carolina’s Lindsey Graham support. With a new study showing that undocumented mothers account for a disproportionate number of births, even some Democrats might find it hard to stand opposed to altering the citizenship clause.

Fortunately, the history of the clause suggests an effective, pragmatic solution that should appeal to both parties.

The clause’s purpose was to guarantee citizenship for former slaves — a right Congress had enacted in 1866 — and to overrule the infamous Dred Scott decision, which had denied blacks citizenship and helped precipitate the Civil War.

But the clause also excluded from birthright citizenship people who were not “subject to the jurisdiction thereof.” This exclusion was primarily aimed at the American-born children of American Indians and foreign diplomats and soldiers, categories governed by other sovereign entities.

The citizenship clause reflected a new American approach to political membership. Under common law dating back to the early 17th century, national allegiance had been perpetual, not consensual. Our country contested this assumption during the War of 1812 after the British impressed Americans into the Royal Navy, insisting that they remained the king’s subjects.

By 1868, Congress had come to view citizenship as a mutual relationship to which both the nation and the individual must consent. This explains why it passed — one day before the citizenship clause was ratified — the Expatriation Act, allowing Americans to shed their American or foreign citizenship.

Particularly relevant to today’s controversy was the floor debate on the citizenship clause. It suggested that the American-born children of resident aliens would indeed be citizens, a suggestion confirmed in an 1898 Supreme Court decision involving the son of a resident Chinese couple.

Congress did not, however, discuss the status of children of illegal immigrants — at the time, federal law didn’t limit immigration, so no parents were here illegally.

Nevertheless, it is hard to believe that Congress would have surrendered the power to regulate citizenship for such a group, much less grant it automatically to people whom it might someday bar from the country. The Supreme Court has never squarely held otherwise, although it did assume, without explanation, in a brief 1982 footnote that the American-born children of illegal immigrants were constitutional citizens. This history suggests that Congress can act on birthright citizenship without a constitutional amendment.

Fast-forward to today to an America with 11 million illegal immigrants. If the Constitution permits Congress to regulate their children’s citizenship by statute, what should that statute provide?

This question is much harder than the zealots on both sides suggest. The argument against any birthright citizenship is that these children are here as a result of an illegal act and thus have no claim to membership in a country built on the ideal of mutual consent.

In the extreme case of “anchor babies” — children born after a mother briefly crosses the border to give birth — the notion of automatic citizenship for the child strikes most people as not only anomalous but also offensive. No other developed country except Canada, which has relatively few illegal immigrants, has rules that would allow it.

At the same time, we rightly resist punishing children for their parents’ crimes. Without birthright citizenship, they could be legally stranded, perhaps even stateless, in a country where they were born and may spend their lives. And because more than a third of undocumented parents have a least one American child, ending birthright citizenship would greatly increase the number of undocumented people in the country.

Fortunately, these strongly competing values, combined with the notion of mutual-consent citizenship, suggest a solution: condition the citizenship of such children on having what international law terms a “genuine connection” to American society.

This is already a practice in some European countries, where laws requiring blood ties to existing citizens have been relaxed to give birthright citizenship to children of illegal immigrants who have lived in the country for some time — Britain, for example, requires 10 years and no long absences from the country.

Congress should do likewise, perhaps conditioning birthright citizenship on a certain number of years of education in American schools; such children could apply for citizenship at, say, age 10. The children would become citizens retroactively, regardless of their parents’ status.

Other aspects of the larger immigration debate would continue, of course. But such a principled yet pragmatic solution to the birthright citizenship question could point the way toward common ground on immigration reform.

Peter H. Schuck, a professor of law at Yale, is a co-editor of “Understanding America: The Anatomy of an Exceptional Nation.”

The Checks & Balances of "Limited Government"

RAND PAUL: CONSTITUTIONAL CONSERVATIVE

By Rand Paul

It's often repeated in stories about me or my race for U.S. Senate that I am a "libertarian." In my mind, the word "libertarian" has become an emotionally charged, and often misunderstood, word in our current political climate. But, I would argue very strongly that the vast coalition of Americans — including independents, moderates, Republicans, conservatives and "Tea Party" activists — share many libertarian points of view, as do I.

I choose to use a different phrase to describe my beliefs — I consider myself a constitutional conservative, which I take to mean a conservative who actually believes in smaller government and more individual freedom. The libertarian principles of limited government, self-reliance and respect for the Constitution are embedded within my constitutional conservatism, and in the views of countless Americans from across the political spectrum.

Our Founding Fathers were clearly libertarians, and constructed a Republic with strict limits on government power designed to protect the rights and freedom of the citizens above all else. Our deep respect for these principles of liberty and the laws that protected them are what allowed America to become the greatest, most prosperous nation in human history.

Other principles shared by libertarians and traditional conservatives will be familiar to most, because they are the story of our greatness.

They include sound money (meaning a dollar that keeps its value over time); a foreign policy of peace through strength, of neither military weakness nor overreaching nation-building; and a government that lives within its means and abides by the limits set forth in the Constitution.

These are the views that unite many conservatives and libertarians. And they form the basis for my campaign this year, one that has struck a chord with Republicans, independents, libertarians, and Tea Party activists.

Trouble started decades ago

Our current economic crisis, the recent bailouts and the overreach of the one-party rule in Washington have crystallized something for millions of Americans — that something has gone terribly wrong. And it didn't start in 2008. It goes back decades.

More and more power became centralized in Washington, D.C., as the federal government responded to every new crisis — from the Great Depression to the Great Recession of today — by expanding its reach deeper into all of our lives.

Now Washington forces us to buy health insurance while limiting our choices. Programs must fit its bureaucratic standards, effectively putting government in control of what medicines and treatments millions of Americans can get. The bailouts and federal takeovers of the past two years have made the federal government the nation's top mortgage lender and a major player in auto manufacturing, as well as Wall Street's ATM of first and last resort.

This departure from the limited government envisioned by the Founders has encouraged too many Americans to forget their heritage of freedom. When there is a problem, Washington tells us, more government is the solution.

A careful look at some libertarian views, however, could reawaken in us the virtues this nation was founded upon: hard work, individual responsibility, families and neighbors taking care of one another, and honest competition in the marketplace — not phony competition in which politicians deem favored businesses "too big to fail."

The people's role

What the Founders intended, and what many libertarians today want, is something different: a federal system that keeps decision-making close to the people. The federal government should not do what the states can do for themselves, the states should not do what local governments can do for themselves, and local governments should not do what families, faith groups and individuals can do for themselves.

The Founders understood, however, that the federal government has important roles to play, both in protecting our nation and in protecting the rights of its citizens. State and local governments can exceed their powers and injure citizens' rights just as the federal government can.

That's why the Constitution explicitly forbids states to do certain things, such as issue their own currency. Before the Constitution was ratified, states created inflationary currencies to defraud creditors. Sometimes federal action is necessary to correct violations of rights at the state and local levels. Liberty is secure in a federal system when the federal government and the states check one another, not when either side completely dominates the other at the expense of freedom.

Liberty is our heritage; it's the thing constitutional conservatives like myself wish to preserve, which is why Ronald Reagan declared in 1975, "I believe the very heart and soul of conservatism is libertarianism."

I am sure that this belief is becoming more and more vital to our very survival as a nation — that belief in self-reliance, limited government and the Constitution hold the keys to fixing our problems and getting our nation back on track. And, I also believe that the common bond of liberty can unite Americans and build a winning political collation to stand up against big government elites in both parties while reclaiming our freedom and prosperity.

Rand Paul is the Republican candidate for the U.S. Senate in Kentucky.