Could you help a guy from Boston with a question about CA red light cameras?

I asked him to provide more information, to which he responded:

On our recent trip visiting an elderly cousin at Seal Beach I was driving a rental car south and needed to use a restroom late on a Sunday night, so I got off Int. 5, stopped at the off ramp intersection traffic light. I saw that the entire intersection was clear of traffic with a full view in all directions, then made the left turn into a restaurant. I really needed to get there.

Apparently the rental car co. got a notice about their car tripping a red light camera. They must have provided my drivers license, but gave an incorrect first name to some agency. I have no violations in nearly 40 years of driving. Now the State of CA with automated equipment and no verifying traffic officer can threaten my freedom with no process service.

I may never have seen the 1st-class mail with an incorrect name. What could happen if I just ignore the citation?

Thanks for any help or comment.

You have hit upon one of my particular pet peeves, here, Rob. I am an adamant opponent of the use of cameras to enforce the traffic (or any other) laws. Too much Big Brother for my Libertarian philosophy of what government should be.

Unfortunately, the use of these red light cameras has repeatedly been upheld by California courts (and the courts of many other states, as well). So, even though no officer saw the violation, it can result in a conviction.

Your particular situation presents two significant difficulties, the first of which is that under California law, you did commit a red light violation.

The second is that you are in Massachusetts, which makes it more difficult — but not impossible — to fight your ticket.

Trial by Declaration

California has a procedure called Trial by Declaration, which you might want to try. Using this procedure, you can submit your side of the case to the court by written declaration.

At the bottom of this post are links to the forms you need to submit a Trial by Declaration. The first two are the ones you will need to submit your request. The last two are for use if it becomes necessary to request a new trial after the first result is unsatisfactory.

Use of the trial by declaration, rather than simply paying the fine, will at least give you the chance to present mitigating factors to the court. Two are readily apparent — one, the “urgency” of the situation, which is certainly understandable; and two, that even though you did go through a red light, you created no danger because there were no other vehicles in the vicinity.

It is unlikely that either will convince the judge to find you not guilty (the urgency of your situation probably does not rise to the level of a “necessity” defense, which works only when breaking the law is necessary to prevent some greater harm). But, if may convince the court to impose a lesser fine than the standard $390.

On Line Traffic School

California also allows minor traffic offenses to be resolved by attending traffic school, which can now be done online. This requires payment of the full fine, plus the cost of the traffic school, so the expense will be greater, but has the advantage of resulting in dismissal of the ticket so that it does not appear on your driving record.

In the end, this could save you as much on insurance as the cost of the ticket and the traffic school combined.

The last link below is to an online traffic school which is accepted in California courts.

Failing to Appear (“Just Ignoring It”)

As for your specific question, if you do not follow any of the allowable procedures (pay the fine, do traffic school, file a request for Trial by Declaration or appear in court), a bench warrant will be issued for Failure to Appear (FTA). This will just make the situation worse, as that is a separate, misdemeanor criminal offense.

Interestingly, Massachusetts is one of only five states in the country that have not joined the Interstate Drivers License Compact, by which states exchange information such as FTA’s on traffic infractions. Therefore, if you never come back to California, you may never be served with the warrant or have any action taken against your driver’s license. On the other hand, if you do come back to California and are stopped again, you could be arrested on the spot and taken into custody.

Also, the fact that you have a FTA warrant in California could be discovered by your insurance company. This would probably result in an increase in premiums or even outright cancellation of your auto insurance.

Conclusion

All in all, I strongly urge you not to ignore the citation and suggest that you try the Trial by Declaration. It won’t result in anything worse than the bail being forfeited, so you have nothing to lose except the time it takes to prepare the paperwork. Or, do the online traffic school and keep the violation off your record entirely.

I hope this helps you decide what to do. Let me know how it works out.

________________________________________________________

The California red light laws are in Vehicle Code section 21453, which is at:

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=veh&group=21001-22000&file=21450-21468

The California Judicial Council forms for a Trial by Declaration are located at:

http://www.courtinfo.ca.gov/forms/documents/tr200.pdf

http://www.courtinfo.ca.gov/forms/fillable/tr205.pdf

http://www.courtinfo.ca.gov/forms/fillable/tr220.pdf

http://www.courtinfo.ca.gov/forms/fillable/tr225.pdf

An online traffic school accepted by California courts can be found at:

http://www.gototrafficschool.com/default.aspx

While doing some research on Texas law for another reason today, I ran across Texas Penal Code section 42.11, which not only makes it illegal to “damage, deface, mutilate or burn” the American flag, but also the Texas state flag.

The Supreme Court Johnson decision, which actually addressed a previous version of the Texas law, was announced on June 21, 1989. The current version of the Texas statute became effective barely more than two months later (on September 1, 1989).

Apparently, those recalcitrant Texans didn’t get the message.

Of course, they are not alone … 47 of the 50 states have current flag protection laws, even though the U. S. Supreme Court also invalidated the federal flag-burning law which was enacted in response to the Johnson decision. That law, the 1989 Flag Protection Act, was held unconstitutional in the case of United States v. Eichman. Since then, all congressional efforts to pass a new flag law have failed.

Two states — Alaska and Wyoming — have no flag protection laws. Wisconsin has such a law, but its own Supreme Court declared the law unconstitutional in 1998 and subsequent attempts to enact a new one have also failed.

Of the remaining states, 29 (including Texas) have laws protecting the American flag and their own state flags, while 11 have laws which protect only the American flag. Two states (Utah and New Jersey) have laws which protect the American flag and any state flag (thereby displaying a rare degree of solicitude for other states).

Five states (Florida, Georgia, Louisiana, Mississippi & South Carolina) have laws protecting the American flag, their own state flags and the flags of the Confederacy. Talk about unrepentant!

I personally agree with those who think flag-burning as a form of protest is protected by the First Amendment. Nevertheless, that belief doesn’t prevent me from getting a little thrill every time I see what may be the greatest moment in Major League Baseball history:

http://www.watchbaseballvideos.com/35/rick-monday-tribute-1976-video

April 25, 1976. Dodger Stadium. Rick Monday. If you’ve never seen this, check it out.

____________________________________________________________

A good website summarizing the state flag laws is the First Amendment Center‘s site at:

http://www.firstamendmentcenter.org/speech/flagburning/topic.aspx?topic=flag_statelaws

The U. S. Supreme Court decision Texas v. Johnson, 491 U. S. 397 (1989), is available at:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=491&invol=397

The Wikipedia article on the Johnson case is at:

http://en.wikipedia.org/wiki/Texas_v._Johnson

The decision in United States v. Eichman, 496 U.S. 310 (1990), is available at:

http://www.esquilax.com/flag/eichman.html

The Wikipedia article on the Eichman case is at:

http://en.wikipedia.org/wiki/United_States_v._Eichman

Texas Statutes on flag destruction (Penal Code section 42.11) and the punishment for violating that section (Penal Code section 12.21) can be found on the Texas law statutes page at:

http://tlo2.tlc.state.tx.us/statutes/pe.toc.htm

The fine schedule for violating the California high occupancy vehicle (carpool) lane is derived primarily from California Vehicle Code section 42001.11 (set forth in full below). A rather arcane application of that section and several other code sections results in a minimum fine of $271.

The hands free cell phone thing is supposed to be a public safety law, while the carpool restrictions are totally unrelated to public safety. Yet the basic fine for a carpool lane violation is more than 13 times the basic fine for a hands free cell phone violation.

Which makes me wonder about the screwed up priorities this dichotomy demonstrates. And what those people in Sacramento are thinking about when they write our laws.

BTW, all fines in California are also subject to “penalty assessments” and other fees which make the final out-of-pocket costs considerably higher. The exact amount of these fees varies from county to county, but can more than triple the actual cost of any ticket. So don’t be expecting a cell phone violation to be costing you a double sawbuck.

________________________________________________________________

California Vehicle Code section 42001.11:

42001.11.  Every person convicted of an infraction for a violation
of Section 21655.5 or 21655.8 shall be punished as follows:
   (a) For a first conviction, a fine of not less than one hundred
dollars ($100), nor more than one hundred fifty dollars ($150).
   (b) For a second conviction within a period of one year, a fine of
not less than one hundred fifty dollars ($150), nor more than two
hundred dollars ($200).
   (c) For a third or any subsequent conviction within a period of
two years, a fine of not less than two hundred fifty dollars ($250),
nor more than five hundred dollars ($500).

Don’t know if you can help, but I’m purchasing a property that is in foreclosure. There is an old beater car on the property.

No one seems to have any advice as to whether we can sell it, take it to a junk yard etc. We obviously don’t want it at the house, since the house is nice and in a good neighborhood, but we do not want to sell it/dump it and have the owner come back looking for it. The property has been in foreclosure for a few months. Any input would help! Thanks

Hi Laura and thanks for joining the conversation here. You have posed an interesting question, regarding which I have several thoughts:

If the vehicle has a license plate, even if outdated, you can go to your state’s DMV to determine the name and contact information for the owner. Even if there is no license plate, you can also use the VIN to obtain owner information.

If the vehicle was owned by the same person who owned the house, you may also be able to obtain his current contact information through the foreclosure paperwork.

Once you have the owner’s name and address, notify him by registered mail that you want the vehicle removed from the property and give him notice that if it is not removed, you will have it towed. If you cannot obtain current contact information for the owner, you can usually provide legal notice through publication in the local newspaper.

You should also contact a local tow company. They will be able to tell you what the law requires in your state regarding the towing of abandoned vehicles. Generally speaking, an authorized towing company can tow a vehicle and go through a “lien sale” process by which they can obtain legal title to the vehicle. This will protect you against any claim by the previous owner.

You cannot sell the vehicle unless you first obtain clear title, which you will not be able to do without consent of the legal owner. Nor should you just “dump” it. If you cannot locate the owner, the best bet is to have it legally towed off your property.

If the vehicle is inoperable, it probably isn’t worth much. In that case, even if you have it towed and the owner comes back and wants you to pay for it, you can refuse and let him decide if he wants to pursue it in court. For a low value vehicle, the risk in taking that approach is relatively small.

If you have any follow up questions, please ask. Good luck with and congratulations on your home purchase.

Jim, I’m sure you’ve heard of or seen this email before. I’ve received it several times. Do you have any idea why these Senators would vote against English as the official language of the US.

Could it be that there were other things included in the bill which would cause them to vote against it. I don’t understand how it all works, but I know sometimes unrelated things are included so that they are easily passed or not passed. Can you enlighten me a little??

Attached to this email was another which had been sent to her, which reads:

Lincoln was right!!!!

TAKE A FEW MOMENTS AND READ THIS LETTER. THESE ARE STRONG, POWERFUL AND COURAGEOUS WORDS COMING FROM A RETIRED COLONEL, AND READ WHAT LINCOLN HAD TO SAY AT THE END. WOW!

33 Senators Voted Against English as America’s Official Language on June 6, 2007. On Wed. 6 June 2007, Colonel Harry Riley, USA, Ret. wrote:

Senators:

Your vote against an amendment to the immigration Bill 1348…. to make English America’s official language is astounding. On D-Day, no less, when we honor those that sacrificed in order to secure the bedrock, character and principles of America, I can only surmise your vote reflects a loyalty to illegal aliens.

I don’t much care where you come from. What your religion is. Whether you’re black, white, or some other color…male or female……Democrat, Republican or Independent……. But I do care when you are a United States Senator representing Citizens of America … and Vote against English as the official language of the United States.

Your vote reflects Betrayal. Political Surrender. Violates Your Pledge of Allegiance. Dishonors historical principle. Rejects Patriotism. Borders on traitorous action and, in my opinion, makes you unfit to serve as a United States Senator…impeachment… Recall……..Or other appropriate action is warranted, or worse.

Four of you voting against English as America’s Official Language are Presidential Candidates: Senator Biden, Senator Clinton, Senator Dodd and Senator Obama. Four Senators vying to lead America, but won’t, or don’t, have the courage to cast a vote in favor of English as America’s Official Language when 91% of American Citizens want English officially designated as our language.

This is the second time in the last several months this list of Senators have disgraced themselves as ‘political Hacks’….. Unworthy as Senators and certainly unqualified to serve as President of the United States .

If America is as angry as I am, you will realize a backlash so stunning it will literally ‘rock you out of your socks’……… And preferably totally out of the United States Senate.

The entire immigration bill is a farce… Your action only confirms this really isn’t about America… it is about self-serving politics……despicable at best. It has been said: ‘Never Argue with an Idiot…They’ll drag you down to their level!’

PRESIDENT ABRAHAM LINCOLN SAID: ‘Congressmen who willfully take actions during wartime that damages morale and undermine the military are saboteurs and should be arrested, quickly tried and hanged!!!’

PLEASE KEEP THIS GOING AROUND THE UNITED STATES UNTIL THE ELECTION IN NOVEMBER!

_____________________________

I replied to Suzie as follows:

Oh, my, more of this hyperbolic, xenophobic nonsense.

For starters, though there is a real Col. Harry Riley who is now a conservative commentator, I cannot find any source which confirms or denies that he ever wrote this letter. It does not appear on his own website (“Eagles Up”), so he probably didn’t. The piece originally made the rounds without reference to Riley; attribution to him was apparently added after it had been around for awhile. I would guess it was added by someone who wanted to provide a false touch of authenticity.

None of the proposed amendments to Senate Bill 1348 would have declared English our “official language”. There were actually two different proposed amendments which addressed the use of English by the government. Each referred to use of English for government business, though neither actually would have made it our “official” language. Both amendments passed. The senators listed in the email voted against one of them and in favor of the other.

Amendment 4064, which is the referred to in this email, opened with a sentence reading: “The government of the United States shall preserve and enhance the role of English as the national language of the United States of America.”

Amendment 4073, which all of the senators addressed by this email voted in favor of, provided in part: “The government of the United States shall preserve and enhance the role of English as the common and unifying language of America”.

Amendment 4604 also allows, but does not require, the government to provide services only in English. Amendment 4073 specifically says it is not intended to change any existing laws regarding the use of English or any other language in the providing of government services.

Most of this email is just emotional nonsense. As of 2000, 18% of all Americans over the age of 5 spoke some language other than English at home. Most of them, of course, were Spanish speakers (13%), but there are dozens of other languages spoken in American homes as well.

On the other hand, many of the people in the rest of the WORLD speak English, if not as their first language, as their second. It is the language of international commerce and international relations. No matter what happens in the United States, English is not going anywhere. It is, for all practical purposes, the unofficial “world” language.

The numbers of English speakers in other countries where English is not the native language are instructive: 90 million India (some as a second and others as a third language); 79 million Nigeria; 42 million Philippines; 36 million Germany; 17 million Pakistan; 16 million France; 14 million Italy; 12 million Holland; 10 million Spain; and so on (including 7 million Russians and nearly 3 million Chinese, where they are just starting to teach English as a matter of course in their schools). The vast majority of well educated people, including the business, social and political leaders, of every country in the world speak English.

The claim that 91% of all Americans citizens want English as a national language is also incorrect. The number appears to have been taken from a Rasmussen Reports survey, which actually reported 85% overall support, 91% support among Americans over 40 years of age and 78% support among Americans under 40.

It is also interesting that, at the time the U.S. Constitution was written, there was a lot of talk about making English the “official” language of the country. Our forefathers (wisely, in my opinion) specifically decided NOT to do so. They thought it might unfairly deny equal rights to the people then in the US who did not speak English and worried that such a law would be used to deny equal rights to future non-English speakers.

In my opinion, ceremonial designation of English as our “official” language would in and of itself be okay, but any law which declares that government services cannot be provided in other languages for those who do not speak English would be unconstitutional. There is no constitutional requirement that every citizen speak English, nor should there be. Nor is there any constitutional authority for imposing such a requirement.

The truth of the matter is, virtually ALL second generation Americans (that is, children of immigrants) learn to speak English because they have no practical choice. Many become bilingual, but many others do not (your nephew Jay and niece Marion are good examples of children of an immigrant who speaks another language but never learned it themselves). [Note: My sister-in-law Magdalene Reilly is a refugee from Hungary, brought to this country by her parents in the mid-1950's. She speaks Hungarian and English; her children, Jay and Marion, do not speak Hungarian.]

The diversity of the American population is one of the great strengths of this country. The language thing will, and always does, over the course of a single generation, take care of itself.

By the way, Lincoln was right about a lot of things … this isn’t one of them, as he never even said what is quoted here. The statement was written by one J. Michael Waller for an article that he wrote for Insight magazine in December 2003. He didn’t even intend it to be a quote (a copy editor erroneously put quotation marks on it). Lincoln himself, as a congressman in 1848, vigorously opposed the war with Mexico.

Apparently, America isn’t as angry as the actual author of this piece, whoever that is. Not only has there been no “backlash so stunning it will literally ‘rock you out of your socks’… And preferably totally out of the United States Senate“, one of the targets of the piece (Senator Obama) is quite likely to be “rocking out” of the Senate right into the White House.

The writer of this thing couldn’t even get his quote about arguing with an idiot right. The actual quote (attributed to one John Guerrero, though I can’t find anything which identifies him) is:

“Never argue with an idiot, because they will only bring you down to their level and beat you by experience.”

Which is interesting primarily because the grammatical errors make the author sound like an idiot! There is a reference error (singular “an idiot” with a plural reference “they”) and an incorrect preposition (“by” implies physicality or measurement, as in “beaten by a mile”; the correct word here would be “with”).

On the other hand, I probably should have followed this advice, as preparing this response has taken me more than two hours!! I will, however, get double use out of it by putting it on my weblog, too.

And so, here it is.

____________________________________

Col. Harry Riley’s website is called “Eagles Up”. The home page is at:

http://eaglesup.us/index.php?option=com_frontpage&Itemid=1

For information on Senate Bill 1348 and amendments 4604 and 4073, see the Snopes article at:

http://www.snopes.com/politics/immigration/englishvote.asp

For information on Spanish language speakers in the U.S., see:

http://en.wikipedia.org/wiki/Spanish_in_the_United_States

or the U.S. Census Bureau report at:

http://www.census.gov/Press-Release/www/releases/archives/census_2000/001406.html

Regarding the speaking of English around the world, see:

http://en.wikipedia.org/wiki/English_language

For the Rasmussen report on support for English as the official language of the U.S., see:

http://www.rasmussenreports.com/public_content/politics/current_events/general_current_events/85_support_english_as_official_language_of_u_s

For information about consideration of English as an official language at the time the U.S. Constitution was written (and for another perspective on the subject in general), see:

http://www.lectlaw.com/files/con09.htm

Regarding the “idiot” quote, see this website:

http://www.quotatio.com/g/guerrero-john-never-argue-with-an-idiot-because-072123.html

Regarding the supposed Lincoln quote, see:

http://www.achievementdigest.com/Quote.html

http://freelegaladvice.wordpress.com/2008/06/25/california-anti-gay-marriage-initiative/

… and, coincidentally, with proponents of the anti-gay marriage initiative.

The court, ruling in Bennett v. Bowen, Case No. S164520, denied a petition to remove the initiative from the ballot, rejecting the petitioner’s argument that the initiative would “revise” rather than “amend” the constitution.

Article 18, section 3, of the California constitution says:

“The electors may amend the Constitution by initiative.”

On the other hand, constitutional “revisions” can only be submitted to the voters by a two-thirds vote of the legislature. Article 18, section 1, of the constitution says in pertinent part:

“The Legislature by rollcall vote entered in the journal, two-thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution and in the same manner may amend or withdraw its proposal.”

Inasmuch as the same sex marriage initiative was placed on the ballot via the initiative process, without having been proposed by the legislature, a determination that it was a “revision” of the constitution, rather than an “amendment”, would have required that it be removed from the ballot.

Proponents of the initiative argue that it is appropriate for the “democratic process” to decide the issue, as assertion with which I have a fundamental disagreement.

The so-called “democratic process” (that is, deciding an issue by having the people vote on it), is entirely appropriate when, from among two or more choices one and only one must be selected. The most obvious example being the election of someone to hold a particular political office. Only one person can be president; therefore, the “democratic process” is appropriate for this purpose — we all vote and the person who gets the most votes is elected.

Oh, wait, bad example … getting “the most votes” doesn’t always get you elected president. Just ask Al Gore. We really don’t even elect our most important political figure by the “democratic process” after all, do we? But, I digress. The point is, only one person can hold any particular office, so we vote to decide who it will be.

HOWEVER, where from among two or more choices, it is not necessary to make the same choice for everyone, the “democratic process” is not only unnecessary, but often unconstitutional and occasionally even dangerous.

Marriage is one of those issues regarding which it is not necessary (or even desirable) to choose one and only one result for everyone. There is neither a logical nor a legal — nor even a socially compelling — reason to impose on everyone the same standard of who they can (or cannot) marry.

Oh sure, there is a religious basis for objecting to gay marriage, but religion is perhaps the worst of all foundations on which to base social policy. Which is to say nothing of the fact that our government is constitutionally prohibited from doing so. And while the people of California can amend the state constitution to deny equal rights to gays, they cannot — by themselves — amend the federal constitution.

Bottom line, even if this initiative is approved by California voters in November, the question will remain whether the provision violates the equal protection clause of the federal constitution. In my opinion, it does. Eventually, the U.S. Supreme Court will be called upon to decide the issue. And based on the intensity with which it is being addressed by both sides, I expect that the court will have to do so sooner, rather than later.

John first quoted the following paragraph from my post:

>> And the reason for this sophistical sleight of hand is readily apparent: While the Declaration contains four “religious” references (“God”, “Creator”, “Supreme Judge” and “Divine Providence”), the document on which our government is actually founded — the Constitution — contains no reference to a “god” of any kind and mentions “religion” only for the purpose of denying to the government entirely the power to legislate with respect thereto. <<

John’s further comments, with my interpolated responses, continued:

That is not what the Constitution states. It states that the Fed gov will have no power with respect to ‘the establishment of religion’ – That article was inserted at the demand of those who were afraid that the Federal government would DISESTABLISH the then established religions in several colonies. It says nothing about denying the government of any other power with respect to religion.

To be precise, on the subject of religion, the First Amendment says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ….”

The second of those two provisions (“no law … prohibiting the free exercise thereof”) does exactly what you suggest, John — it prevents the “disestablishment” of the then existing religions in the colonies. That being the case, however, your interpretation of the First Amendment would render the first restriction (“no law respecting the establishment of religion”) either meaningless or redundant.

It is a fundamental precept of legal and constitutional analysis that a court must not interpret a law so as to render any part of it meaningless, unless there is no other reasonable interpretation. Furthermore, there is neither a logical nor an historical reason for concluding that the authors of the constitution intended to say the same thing twice; or to include therein a meaningless provision.

That being the case, the proscription against laws “establishing” religion must be something other than, as you suggest, a proscription against “disestablishment” of religion. Read together, the two provisions prevent the government from either promoting or restricting religion. Thus, as I said, they deny government the power to legislate at all with respect to religion.

In fact Congress very soon legislated to provide religious support in the Northwest territories for Indians.

The so-called “Northwest Ordinance” to which you apparently refer, was passed on July 13, 1787, by the Confederation Congress, which governed the nation under the Articles of Confederation. This preceded the ratification of the U.S. Constitution by two years, though it was affirmed by Congress under the new Constitution on August 7, 1789.

It did not, however, provide “religious support in the Northwest Territories for Indians”. The provision of Article III of the Ordinance which addressed the subject reads as follows:

“Religion, Morality and knowledge being necessary to good government and the happiness of mankind, Schools and the means of education shall be forever encouraged.”

Read properly, this provision actually encourages support for “schools and the means of education”, and cites “religion” only as one of the reasons for doing so. What’s more, neither the Confederation Congress nor the Constitutional Congress provided, in furtherance of this provision, any financial assistance to churches in the Northwest Territory.

For a more detailed discussion of the Northwest Ordinance and its purported support for religion, see this webpage:

http://candst.tripod.com/nwo1b3.htm

Of course Congress set up its own chaplains and chaplains in the armed forces.

It was also the Continental Congress, not the Constitutional Congress, which established chaplains for both the congress itself and the armed services. A good argument can be made that both and particularly the congressional chaplains are themselves unconstitutional and should have been abolished upon adoption of the US Constitution.

In this opinion regarding the congressional chaplains, I am joined by no less an authority than James Madison, who wrote the First Amendment and regarding the appointment of Congressional chaplains said:

“Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom? In the strictness the answer on both points must be in the negative. The Constitution of the U. S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation?”

In the last 10 years or so especially there have been more and more books and articles by historians having a new look at the large role of religion not only in the colonies but in the United States prior to the Civil War.

It would be disingenuous to argue that religion played no role in the colonization of the Americas, the formation of the country and/or American history prior to the Civil War. On the other hand, I am unclear what this comment is intended to suggest regarding proper interpretation of the First Amendment. I am an adherent to the Hugo Black standard for interpreting the First Amendment (“no law” means … “no law“). While he expressed that opinion with respect to the freedom of speech provision of the amendment, there is no logical reason for reading the freedom of religion provisions any differently. Furthermore, nothing which happened after the First Amendment was adopted can have any bearing on what the framers meant when it was written.

Any number of revisionist historians, primarily those on the religious right, have made and promoted the false claim that the U.S. was founded as a Christian nation. It was not and no “new look” at the history of the country is going to change that fact. The U.S. Constitution is a secular document which by its terms neither promotes nor restricts the exercise of religion in general or any specific religion in particular.

For a good discussion of this issue, see:

http://www.nobeliefs.com/Tripoli.htm

The Constitution does prohibit a religious test with respect to election or appointment of government officials because of course at that time the population consisted of very strongly believing people adhering to a variety of religions and of course they were afraid of government conferring preference on any one as the British government of course did with its acts excluding Catholics and as several colonies had done during the 17th – 18th centuries.

So it does. Article VI, section 3, of the Constitution reads as follows: “…no religious test shall ever be required as a qualification to any office or public trust under the United States.”

This provision, of course, is the only reference to religion in the Constitution as originally proposed and was written before the Bill of Rights was even conceived. It is therefore an important indicator that the framers of the Constitution intended to keep religion out of the new government.

As I note the Constitution does not state government should have NO ROLE in religion but even if it did the reverse is not a corollary. The colonists practiced and expected to practice very strong application of their religious beliefs to their political decisions and policies.

We obviously disagree, John, in our interpretation of what the First Amendment means with respect to religion. Mine is based, in part, on the opinions of two of the Founding Fathers as to what it meant to them: Madison, who is often called the Father of the Constitution and was the primary author of the Bill of Rights, and Thomas Jefferson, who was the primary author of the Declaration of Independence.

Jefferson, in an 1802 letter to the Danbury Baptists, said: “Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their ‘legislature’ should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between church and State.”

In addition to the comment quoted above regarding congressional chaplains, Madison often wrote of the separation of church and state. In an 1819 letter to Robert Walsh, Madison referred to the First Amendment as providing “total separation of the church from the state.”

In Annals of Congress, Sat Aug 15th, 1789 pages 730 – 731, Madison provided a summary of his understanding of the religion clauses of the First Amendment, stating: “Congress should not establish a religion and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience, or that one sect might obtain a pre-eminence, or two combined together, and establish a religion to which they would compel others to conform.”

And, in his exposition “Monopolies Perpetuities Corporations Ecclesiastical Endowments”, Madison reaffirmed his position: “Strongly guarded as is the separation between Religion & Govt in the Constitution of the United States the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history.” (italic emphasis added)

They continued to do so for decades.

Note, John, the emphasized clause of the last Madison quote above, which makes reference to exactly the kinds of actions by congress and other political leaders on which you and others rely to support the argument that religion has a proper constitutional role in our government. James Madison would beg to differ.

For instance the abolitionist movement was championed largely on religious grounds by religiously motivated individuals and groups. History shows that religious belief has played a very strong role in American politics.

As for the abolition of slavery, one need not rely on religious belief to conclude that slavery was wrong and ought to have been abolished (never mind that many, if not most, slave owners — and later most members of the Ku Klux Klan — were “Christians”). Nor was the institution of slavery a “religion”. Hence, reliance on religious beliefs as a foundation for opposing slavery did not constitute enforcement of religion on the unwilling and the abolition of slavery provides no support for the idea that religion has a proper place in government.

Yes, the purpose of government is to legitimate the use of coercion in the hands of the rulers. In a government established under a rule of law that means in the hands of authorities whose legitimacy is governed by law. Yes, it has been the history of governments that they frequently use coercion to enforce religious conformity. That was the history of the British government and all European powers having a state religion. Yes, the authors of the Constitution sought to prevent coercion of religious belief by the new Federal government – they wanted to protect religion from state power – but by no means did they think the opposite, that they would ‘protect’ that is ‘exclude’ the government itself from the influence of religious belief of the people.

I think Madison would beg to differ on this point, as well, for the excellent reason that allowing the “religious beliefs” of “the people” to influence the government has the deleterious (and unconstitutional) effect, for all practical purposes, of “establishing” religion. This is particularly important in a country which has a decided religious majority which could use the government and the law to enforce on an unwilling minority the majority’s religious views.

Two current “hot button” issues illustrate the point: abortion and gay marriage. With respect to each of these issues, opponents are attempting to have the government use the law to enforce by coercion their religious views on people with whom they disagree.

With respect to gay marriage, it is a religious majority attempting to use the government and the law to coercively enforce its views on a minority of the population. As for abortion, roughly half of the people in this country support and half oppose a woman’s right to choose, with the latter seeking to use the government and the law to coercively enforce their views on the former, while the former just want the latter to leave them alone.

With respect to each of these issues, the individual decisions of those who want have abortions or want to live in a same sex marriage have no effect whatsoever on the religious views of those who oppose their rights to do so.

In other words, if you don’t believe in abortion, don’t have one (but don’t try to use the government to legislate your religious view into coercive national policy). And, if you don’t believe in gay marriage, don’t enter into one (but, again, don’t try to use the government to legislate your religious view into coercive national policy).

After all, many of the founders were Masons, who very much wanted their views on religion to have an important role.

I have no doubt that some, perhaps even many, of the founders wanted their religious views to play an important role in development of the country. Personally, I have no problem with religion being an important of the lives of individuals or groups of individuals of faith who voluntarily participate in their religions. To the extent that such participation has a beneficial effect on society in general, more power to them. To the extent, however, that they would use government to impose their religious views on me or others who do not join in their beliefs, the Constitution prohibits that use.

And the American history has borne them out since religious belief has in fact played a critical role in so much of American political thought and policy.

Once again, I can’t disagree that religious belief has in fact played a significant role in American political thought and policy. This has not, however, always been a good thing. Unfortunately, it has all too often been the case the religion has been used to oppress others, even in this good old US of A. And, to the extent that religion has had beneficial effect on governmental policy, I think it is fair to say that good policy is good policy, whether it is founded on “religious” principles or “natural law” or just doing what is right under the circumstances.

In other words, it is not the underlying beliefs, religious or otherwise, that are important, but rather the recognition, acknowledgment and implementation of what ought or ought not to be done in the name of government.

A final (finally, you might say!) thought: Bill Wright, Class of 1957, responded to John Sloan’s email as follows:

John – a well-reasoned commentary with the only added caveat being that religion will continue to play a vital role in our political thought and national policy.

To which I can only say, you’re probably right, Bill, but I am not at all convinced that that is a good thing.

_____________________________________________________________________________

For additional discussion of Constitutional interpretation and separation of church and state, see:

http://en.wikipedia.org/wiki/Separation_of_church_and_state_in_the_United_States

And:

http://en.wikipedia.org/wiki/Separation_of_church_and_state

For a detailed discussion of Madison’s views on the separation of church and state, including the above-referenced quotation regarding congressional chaplains, see:

http://candst.tripod.com/tnppage/qmadison.htm

For more information on the role of religion in the founding and formative years of the United States, see the Library of Congress website on the subject at:

http://www.loc.gov/exhibits/religion/

The religious aspects of government under the Continental Congress and the Articles of Confederation are specifically addressed on this page:

http://www.loc.gov/exhibits/religion/rel04.html

For a discussion of the “Northwest Ordinance” (the full name of which is actually “An Ordinance for the Government of the Territory of the United States, North-West of the River Ohio”), see:

http://en.wikipedia.org/wiki/Northwest_Ordinance

For my earlier discussion of Justice Hugo Black and his “no law means no law” approach to the First Amendment, see:

http://freelegaladvice.wordpress.com/2008/05/19/us-supreme-court-child-porn-purveyors-beware/

His email reads as follows:

I’ve linked my most recent article, which opens with a description from a scene from Seinfeld, when Jerry is informed by a rental car employee that the car he reserved is not available. Jerry, in frustration, says that anyone can take the reservation (“Take, take, take”), it’s holding it that is the most important part.

In a the same way Obama talks a good talk about the role religious belief should play in public life. He says, “So to say that men and women should not inject their ‘personal morality’ into public policy debates is a practical absurdity. Our law is by definition a codification of morality, much of it grounded in the Judeo-Christian tradition.”

However, where the rubber meets the road on some of the seminal issues of our day, he does not deliver the goods.

The Declaration of Independence inevitably comes into play in my discussion of this subject, making it a very relevant read for the 4th of July holiday.

Randy

The link to the article is:

http://www.theconservativevoice.com/article/32999.html

I posted a response to this article which reads as follows:

Randy,

In this piece you repeat the significant underlying logical (and legal) fallacy which was at the core of your previous discussion of gay marriage. Your assertion that the Declaration of Independence supports a role for religion in our government is a classic rhetorical trick, argument by misdirection.

And the reason for this sophistical sleight of hand is readily apparent: While the Declaration contains four “religious” references (“God”, “Creator”, “Supreme Judge” and “Divine Providence”), the document on which our government is actually founded — the Constitution — contains no reference to a “god” of any kind and mentions “religion” only for the purpose of denying to the government entirely the power to legislate with respect thereto.

I challenge you to show me where in the Constitution we find support for your contention that religion has a proper role in our government?

“Morality”, by the way, is an expression of principles of right and wrong in behavior and is not an inherently religious concept. The implication in your article that religious non-believers are somehow deficient in “morality” compared to religious believers is not only offensive but is also belied by the history of human misery inflicted in the name of one religion or another.

Furthermore, the reason for the Constitution’s mandate that government have no role in religion (and the logical corollary that religion should have no role in government) is obvious. The primary raison d’etre of government is coercion and coerced religion has no proper place in the legal system of a democratic society.

To the extent that Barack Obama is “schizophrenic” on the proper role of religion in government, I fault him only for allowing religion any role at all.

Jim Reilly

http://dawn1.newsvine.com/_news/2008/06/26/1613075-the-truth-about-driving-and-talking-on-the-cell

The subject was raised by a user named Dawn-308170, who on Thursday, June 26th, posted a message reading:

I think driving while talking on your cell phone or hands free device should be illegal altogether. If someone gets into an accident while talking on their cell phone or hands free device the penalty should be very steep. If someone is killed and the driver was on the cell phone they should go to jail. When you are drivine a multi ton piece of metal you have to concentrate on the task at hand. That would be your driving. Wake up people. We are becoming a society of ignorant, rude, arrogant human beings who really don’t give a crap about anybody but ourselves. It’s time to wake up and take responsibility for our actions. We did without cell phones and electronic gadgets for how many years?

Not surprisingly, this post generated a blizzard of responses (1168 at the moment I write this). Back and forth the comments went, supporting Dawn and attacking Dawn, sometimes for her opinion, sometimes very personally. And alternately attacking and supporting, as the case might be, those who were supporting and attacking Dawn.

It is not my purpose in mentioning this conversation to re-ignite it here, or even to discuss the pros and cons of the new law. In fact, I probably would not have even joined in the Newsvine conversation had it not been for a single post by a user who mistakenly styles himself Problem Solver. In a fairly lengthy diatribe (you can read his entire rant on the Newsvine page linked above by scrolling down to his post at 12:17 pm on Thursday, June 26th), he said, “I am extremely coordinated, quite bright (take my word for it!)“, then made this extraordinary comment:

You’d better believe I flip them off, yell at them through their window, lay on my horn so they can’t hear, make “blah blah” hands at them, cut them off, brake suddenly or slow to a crawl if they’re behind me – anything to get them off the phone.

Whatever might be the dangers of cell phone use while driving, road rage is far more serious and dangerous. And Problem Solver is a very angry person indeed. I replied to him as follows:

Blowing your horn other than in an emergency is illegal in California. Intentionally cutting someone off is illegal, dangerous and downright stupid! Far more dangerous than talking on the telephone. And if you do that and cause an accident which kills someone, you will be a candidate for state prison. Braking suddenly and without reason is also illegal. If that causes an accident, you will be at fault. Driving too slowly for the conditions on the freeway is also illegal.

So, Mr. Self-Appointed Traffic cop, at least four of your “tactics” for getting people off their cell phones are illegal. And the road rage characteristics of yelling at people, blowing your horn and making “blah-blah” motions with your hands are also distracting YOU from driving safely.

You, Sir, are not at all “quite bright” (take my word for it!). Rather, you are a self-confessed clueless jackass, far more dangerous on the road than most cell phone talking drivers.

Jim Reilly, Novato CA

Problem Solver replied:

The law as it applies to adults is contained in California Vehicle Code section 23123, which makes it an infraction offense to use a cell phone unless it is “specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving.”

Violations of this law carry fines of $20 for a first offense and $50 for each subsequent offense. There are exceptions for use of a cell phone for certain specified “emergency purposes”.

More restrictive provisions apply to drivers under the age of 18, who are prohibited by Vehicle Code section 23124 from using any cell phone, even if hands free, or any “mobile service device”. Text messaging is therefore also prohibited for minors. The fines and emergency exceptions are the same for minors as for adults.

This new law is yet another example of what I call LCD (Lowest Common Denominator) legislation. Although studies of the dangers of cell phone use have produced conflicting results regarding the extent of such dangers, it is clear enough that the driving of some people is impaired when they are talking on the cell phone, whether hands free or not. It is also clear enough that others are capable of safely operating their vehicles even while using a hand-held cell phone.

Nevertheless, the governmental response, as is all too often the case, is to prohibit the conduct for everyone, simply because some people (almost certainly a minority of drivers) are too stupid, incompetent or otherwise impaired to safely use their cell phones while driving.

Never mind that we already have laws which prohibit all of the specific kinds of conduct about which proponents of the hands free cell phone law have complained, such as weaving into an adjacent lane (CVC 22107), following too closely behind another vehicle (CVC 21703), driving too fast (CVC 22348-22350), running a red light (CVC 22453) or stop sign (CVC 22450), and reckless driving (23103).

And, as is all too typical of nanny legislation, the new law for adults does not prohibit the considerably more dangerous conduct of dialing a cell phone by hand … or even the use of a cell phone to send a text message while driving. Or many of the other kinds of distracting activities in which California drivers regularly engage.

There has, of course, been a raging debate about cell phone use while driving, some of which is well beyond the limits of reasonable discourse. More about that later.

____________________________________________________________

The full text of the new California cell phone laws (Vehicle Code section 23123 and 23124) is available online on the Official California Legislative Information website at:

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=veh&group=23001-24000&file=23100-23135

Note that there are two versions of 23123, the first of which is repealed as of July 1, 2011, and replaced by the second.

The other California Vehicle Code sections mentioned above can be found as follows:

CVC 21703 is at: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=veh&group=22001-23000&file=22100-22113

CVC 22107 is at: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=veh&group=22001-23000&file=22100-22113

CVC 22348-22350 are at: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=veh&group=22001-23000&file=22348-22366

CVC 22450 & 22453 are at: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=veh&group=21001-22000&file=21450-21468

CVC 23103 is at: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=veh&group=23001-24000&file=23100-23135