Our Secular Papacy and Sacred Porn
by D. J. Connolly
When our founders framed, adopted, and ratified the First Amendment, the State of New York had a law on the books against blasphemy as did every other state .
Twenty years later, a man named Ruggles was convicted under the New York law for announcing to a fairly large crowd that, "Jesus Christ was a bastard, and his mother must be a whore." Ruggles appealed his conviction to the state's highest court on the grounds that his punishment for blasphemy violated Article 38 of the New York Constitution. Article 38 declared that "the free exercise and enjoyment of religious profession and worship, without discrimination or preference, should for ever thereafter be allowed within this state, to all mankind."
The court opined that Article 38 did not protect Mr. Ruggles's profanity because his "words were uttered in a wanton manner, and, as they evidently import, with a wicked and malicious disposition, and not in a serious discussion upon any controverted point in religion." The full opinion can be found at the "Founder's Constitution" web site whose URL is given below .
Then as now, New York was more tolerant than most other states of "wanton" behavior. Deleware, for example, punished blasphemy by branding on the forehead plus thirty-nine lashes. Two states punished the offense with death under certain circumstances. The penalty in New York was a fine of only three shillings. Consequently, one wonders why Mr. Ruggles went to the trouble of appealing his conviction. Surely his lawyer charged him a lot more than that to handle the appeal .
In any case, that's not the most interesting aspect of this historical anecdote. The most interesting aspect is the dog that didn't bark. Mr. Ruggles's lawyer didn't try to argue his case in Federal Court on First Amendment grounds. And he didn't claim in his New York State appeal that the U. S. Constitution applied in this sort of case.
That's because everybody knew that it didn't.
JUDICIAL FRAUD AND ELEPHANT DUNG
In the Autumn of 1999, the Brooklyn Museum of Art had a big show featuring a picture of the Mother of Christ decorated with elephant dung. New York mayor Rudy Guliani said that the painting was "perverted and anti-Catholic." And he didn't think the taxpayers of New York City, (one third of whom were Catholics) should be forced to pay for that kind of stuff. So he announced that the city would quit sending $7.2 million per-year to the museum. The musuem then found a federal judge who ordered New York to continue sending the money.
Judge Nina Gershon characterized the issue before her as preventing "the defendants (that's Rudy Guliani and the people of New York) from punishing or retaliating against the Museum for displaying the Exhibit, in violation of the Museum's rights under the First and 14th Amendments." She quoted from Texas v. Johnson, the fraudulent and notorious 1989 case in which the Supreme Court invented a constitutional right to burn the American flag .
"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable".
Now Judge Nina well knew, as did the judicial buccaneers who handed down Texas v. Johnson, that the First Amendment was intended by our founders to constrain only the federal government, not the City of New York (or State of Texas). The Amendment begins, "Congress shall make no law . . ." The main purpose of the entire Bill of Rights was to keep the new federal government from interfering in the business of state and local governments. The Supreme Court admitted this for almost a century-and-a-half. As the Marshall Court put it in Barron v. Baltimore (1833),
"Had congress engaged in the extraordinary occupation of improving the constitutions of the several states, by affording the people additional protection from the exercise of power by their own governments, in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language."
The lawyers in the elephant dung case all knew the above history. So they knew that our founders did not intend the First Amendment to abridge New York City's right to refrain from funding "perverted and anti-Catholic" art. They did, however (perhaps sincerely), embrace the fiction that the authors of the 14th Amendment intended it to have that disreputable effect. Let's subject that fiction to a little sanity test .
On March 3, 1865 Congress passed a law criminalizing the mailing of any "obscene book, pamphlet, picture, print, or other publication, knowing the same to be of a vulgar and indecent character." The penalty was a fine of up to $500 and up to one year in jail. In 1866, Congress recommended the 14th Amendment to the states, which ratified it by 1868. Then, in 1872, Congress toughened the 1865 law against mailing any "obscene book, pamphlet, picture, print, or other publication, knowing the same to be of a vulgar and indecent character" .
That makes it quite unlikely that the authors of the 14th Amendment intended it to support public funding for "obscene" pictures of "a vulgar and indecent character."
To paraphrase the Marshall Court's Barron v. Baltimore opinion,
had the 14th Amendment's authors engaged in the extraordinary occupation of authorized federal judges to force the people of New York to pay $7.2 million-per-year for "perverted and anti-Catholic" art, they would have declared this purpose in plain and intelligible language.You will not be surprised to learn that the Amendment contains no "plain and intelligible language" which supports Judge Nina's ruling.
During the first decade after the Civil War, Congress passed four laws running, in total, to over eight-thousand words, which declared in "plain and intelligible language" everything the 14th Amendment was intended to accomplish. Using various pretexts, the contemporaneous Supreme Court nullified most of that legislation because the justices found it distasteful. That judicial malfeasance blocked the intended effects of the 14th Amendment and protected three-quarters-of-a-century of Jim Crow laws and Ku Klux Klan outrages in parts of the South. If you're looking for somebody to blame for the persistance of racial problems in America 140 years after we endured a bloody civil war to end slavery, blame the Supreme Court .
Soon after blocking the intended benefits of the 14th Amendment, the Court redirected the Amendment to its own corrupt
purposes, a practice it's continued ever since. Of course, those corrupt purposes are a lot different now than they were in the 19th Century.
They tend to evolve with time. That's what liberal law professors mean when they tell us that the Constitution "evolves"
JUDICIAL GRAND LARCENY
Our employees in the judicial branch of government are extracting $7.2 million per year from the pockets of New York City taxpayers to support "perverted and anti-Catholic" art. They are taking this action on the basis of fraudulent constitutional interpretations, which means the expenditure of public funds is plain theft. Evidently, our judicial branch of government is just another organized crime syndicate .
NOTES AND CITATIONS
1. A list of state laws against blasphemy and/or obscenity that were in force in 1791 can be found in Footnote 12 of the U. S. Supreme Court majority opinion in Roth v. United States, (1957). See Saunders, pages 90-98, for a fairly detailed discussion of the content of those laws.
2. The New York Supreme Court's opinion in People v. Ruggles (1811) can be found at, http://press-pubs.uchicago.edu/founders/documents/amendI_re ligions62.html. Various authors have mistakenly claimed that the New York Court disposed of the claim that Mr. Ruggles prosecution violated the First Amendment to the U. S. Constitution. However, reading the actual opinion discloses that this was certainly not the case. Only the New York Constitution was mentioned.
3. Maryland's anti-blasphemy statute provided for a punishment of "death without benefit of clergy" on the third offense. Massachusetts law provided the death penalty for blasphemy, idolatry, and witchcraft. See Saunders, pages 90-95.
4. See the online essay Flag-Burning and Judicial Activism. Judge Nina's 40 page opinion can (as of this writing, Dec. 2001) be found on the New York Times Web Site at, http://www.nytimes.com/library/arts/110299brooklyn-text.html.
5. A transcript of Barron v. Baltimore can be found on the Internet. The fiction that the 14th Amendment was intended to "incorporate" the Bill of Rights against the states is discussed in the online essay Unnatural Selection.
6. The quoted excerpts from the 1865 and 1872 anti-obscenity laws can be found in Tone (2001), pages 5 and 294. The complete texts of the 1865 and 1872 laws can be found at a Library of Congress web site.
7. Transcripts of the four 14th Amendment Enforcement Acts can be found on the Internet. See also the book by Carr (check the Bibliography) and the online essays Racism in the Court and Congress Shall Not Have the Power.
8. See the online essay Our Evolving Constitution.
9. See A Pattern of Racketeering Activity.
To review publication data on works cited above, check the Bibliography.
This article closely follows Chapter 22 in Grand Larceny: An Unexpurgated History of the Supreme Court..
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D. J. Connolly.