Rhode Island's Weird Prostitution Law, and Why the ACLU Doesn't Want it Changed

Many Rhode Islanders have been surprised to learn, as reported by Amanda Milkovits in the Projo, that "prostitution isn't illegal in Rhode Island as long as it occurs indoors". The issue was brought to light by a Federal law-enforcement multi-state raid against a thriving network of spa-brothels that included at least one site in Providence.

A previous article by Ms. Milkovits from last year described how legalized prostitution in Rhode Island evolved out of change in state law and an unexpected court decision...

There are clusters of massage parlors, which the police say are actually brothels, operating throughout the state. The police raid them, but charges of prostitution don't stick because of a [26]-year-old loophole in the law.

The state's law criminalizing prostitution was changed then after a group of female prostitutes sued in federal court with claims that the Providence police were discriminating against women in their arrests.

The law at the time made prostitution a felony. The General Assembly amended the law to the current version of loitering for indecent purposes, a misdemeanor. The law targets the streetwalkers, their pimps, and customers who solicit them from their vehicles. But there is no provision for prostitutes working for escort services and brothels.

Up until [3] 1/2 years ago, the Providence police were charging women for prostitution inside massage parlors. They stopped after Warwick lawyer Michael J. Kiselica persuaded District Court judges to dismiss the cases based on the wording of the current law.

(The bracketed numerals indicate where I've advanced the relative dates by one year, since the above excerpt is now about one year old).

Last year, legislators proposed outlawing prostitution in a straightforward way, while still keeping it as a misdemeanor. The new law would have read...

A person is guilty of prostitution when such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee. Any person found guilty under this section shall be deemed guilty of a misdemeanor...

The above language would have superseded the existing section 11-34-8 of Rhode Island's General Laws, the section judged not to apply to indoor prostitution...

It shall be unlawful for any person to stand or wander in or near any public highway or street, or any public or private place, and attempt to engage passersby in conversation, or stop or attempt to stop motor vehicles, for the purpose of prostitution or other indecent act, or to patronize, induce, or otherwise secure a person to commit any indecent act. Any person found guilty under this section shall be deemed guilty of a misdemeanor...

Other sections of existing state law already outlaw pimping and human trafficking in Rhode Island in all circumstances, indoors or out.

The proposed change would not have set Rhode Island onto an uncharted path regarding prostitution law, but simply have brought Rhode Island into line with the 48 other states that make prostitution illegal. Still, progressive lobbyists objected to changing the law arguing, as is their habit, that a law that functions smoothly in 48 other states would create untenable conditions if passed in Rhode Island. Leading the charge, the Rhode Island chapter of the ACLU cited two issues. One was the original argument that the law could be used to punish women who might themselves be victims. The second objection was more indirect: enforcing a law against indoor prostitution might create local police contact with illegal immigrants, thus leading local police towards working with Federal authorities...

There is yet another reason to oppose what has happened here and that involves the inappropriate collaboration between the local police and federal immigration agents to address a local community crime issue....

However, if local law enforcement officers become, for all intents and purposes, INS agents in the minds of the immigrant community, any trust that currently exists will be shattered. Victims of crimes, witnesses, and others in tight-knit immigrant communities will refuse to cooperate with police for fear that they, or close friends and family members, could face deportation due to their interaction with police. It is of little solace that the women who were the victims of these raids may have been violating the criminal law. Once the police department believes that it can use federal immigration officials as a shortcut for local criminal law enforcement, the bonds of trust are inevitably weakened.

The ACLU, apparently, opposes communication between different law enforcement authorities. Blinded by their institutional hostility towards law enforcement, the ACLU has reached the erroneous and destructive conclusion that trust can be built between a community and its police officers when police officers are required to stand helpless in the face of the violation of basic, decent community norms (i.e. that prostitution should be illegal). I've been critical of Providence Mayor David Cicilline on other issues, but he's right to pursue this change in the law, even if changing the law involves taking the "drastic" step of allowing different branches of law enforcement to work together.

Finally, to finish up on a mostly inappropriate note in Bill Reynolds-style: There's no truth to the rumor that Senate President Joseph Montalbano will argue that his unreported business with the town of West Warwick did not violate current state law because all of the agreements were made indoors.

Concealed Weapons and Federalism

I don't think that there have been many posts on gun issues hereabouts, but Michael Barone--commenting on David Kopel's analysis of the spread of concealed carry laws--remarks that the spread of such laws is a good sign for federalism. Nebraska recently became the 40th state to approve a concealed carry ("shall-issue") law. According to Barone:

Nebraska's action means that 40 of the 50 states have shall-issue (or even less restrictive) laws on gun possession. This is a great example of federalism: Reforms that could never have passed Congress have swept across the country, as people in some states have learned from the experience of others. While centralized elites have concentrated on restricting gun ownership, with little practical effect, decentralized non-elites in the states have promoted legal gun ownership, with results that seem benign.

Kopel's analysis and description of the typical process that has occurred in each state that has eventually approved of a shall carry law is instructive. He also explains that, while Rhode Island technically has a shall-issue law, it is not followed. Here's why:

Rhode Island actually has a Shall Issue law (for issuance by local law enforcement) and a Capricious Issue law (for issue by the Attorney General). The Attorney General has succeeded, at least temporarily, in stifling the local Shall Issue system, but a decision (PDF) of the Rhode Island Supreme Court suggests that this state of affairs is untenable. [Though the Brady Campaign has a different interpretation. - MAC] All that is necessary to implement Shall Issue in Rhode Island is a new Attorney General with a different attitude, or the proper legal challenge. Rhode Island too seems a likely candidate to become a Shall Issue state.

Kopel bases his evaluation of shall-issue in Rhode Island on his own research (PDF, p.20-30 in the file. It is taken from the Albany Law Review).

UPDATE: Meanwhile, David Gelernter believes that a new turn toward federalism can be useful as a way to tamp down the polarization that has arisen in contemporary America. He believes reining in the power of the Supreme Court would be the key. It's worth a read. (via Ramesh Ponnuru at The Corner)

The Coercive Role of Government

D. W. MacKenzie wrote in the October 2002 issue of The Freeman: Ideas on Liberty, the monthly publication of the Foundation for Economic Education, about the coercive role of government:

I am government...

Coercion is both my vocation and my avocation; it is in my very nature to compel others to do that which they otherwise would not do. My nature should then be of great concern to you as I impinge on your liberty. My nature affects your life profoundly. Indeed, there is little in your life that escapes my grasp. I am also a mystery to many. Some see me as benevolent, though I murdered 119 million people in the twentieth century. Some see me as omniscient, though I face an insurmountable knowledge problem in trying to comprehend the society I seek to control. Some see me as an absolute necessity, though people have lived in societies without me. But those whom I use seldom recognize any of this. These naive convictions grant me an unwarranted place in society. These misconceptions have imposed great hardships on ordinary people, though they have served an elite of rulers well...

I benefit few at the expense of the many. Small groups organize easily, and large ones do not. Hence if I serve any interests other than those of actual rulers, I serve narrow interests. I grant monopoly privileges to influential industrialists and trade associations. I do this with tariffs and import restrictions that hobble foreign competitors. I do this with regulations that place burdens on new businesses. I do this with licensing laws that restrict access to professions. Of course, these interests pay me to get what they want. Sometimes they pay me simply to leave them alone.

My form is difficult to comprehend as well. I am vast and complex. No one can fathom me in all my complexity. I comprise a gargantuan array of agencies, statutes and regulations, and discretionary policies. No one would have the time or the intellectual capacity to know me fully even if he were to try. There is little point in trying anyway. One person can do nothing to me. No significant election has ever turned on a single vote, so voters have no obvious incentive to learn about me...

I am responsible for all the worst unnatural tragedies and unnecessary burdens that mankind has endured. Yet it seems that no one knows how to stop me. How can this be? My true nature is not easy to discern. When tragedy strikes, I am called into action. If I raise taxes to fund the effort to deal with crises, all can see my costs clearly. If I instead expand my authority to conscript resources, I hide my true costs, thus causing many to overestimate the net benefit of my actions. This instills unduly favorable beliefs about me in many minds.

...There have been successful efforts to restrain me for extended periods of time...In such places, people have prospered. But I have often succeeded in making strong comebacks. Some seek to limit my power with constitutional rules. However, there are strong reasons to doubt the efficacy of these rules. Persons who have power to enforce constitutional rules also have the power to flout them.

Why then do I ever fail?...There must be an answer, because I do sometimes falter...my failures are relatively uncommon. As difficult as the issues here are, they are vitally important to you because the continued success of free societies hinges on them. What is more important to you than that?

And here is why America's Founding was different, even though we have lost our way in recent decades.

Laffey Endorses Shadegg in House Leadership Race

OK, I was wrong. Rhode Island Republicans do have a voice in the upcoming Republican leadership election in the House of Representatives. In today's National Review Online, Republican Senatorial Candidate Steve Laffey has endorsed Congressman John Shadegg of Arizona in the race for House Majority Leader ...

All three contestants have issued numerous promises to fight the special interests, but promises are not enough. John Shadegg has the clearest record of standing up to the corrupt practices and the outrageous pork spending that has become so prevalent in recent years. For example, Representative Shadegg cosponsored a bill to reform the earmark process last spring, long before it became the "in" thing to do, and he was one of only eight Representatives to vote against the pork-heavy Transportation bill.

Laffey then plugs his own campaign, and offers some criticism of his challenger...

John Shadegg and I have something in common: We are both appalled by the spending gluttony in Washington, and we have dedicated our careers to saving taxpayers’ money. That is why I am running for the United States Senate in Rhode Island. The incumbent Republican senator, Lincoln Chafee, has not demonstrated the desire or the ability to stand up to the Washington political bosses and fight for the Republican values of fiscal responsibility and restraint. His career has been marked by timidity and an affinity for the status quo, and that is not good enough.

The Race for Republican Majority Leader

There is an important, upcoming political decision where Rhode Islanders will have no voice. It is the election of a new Majority Leader in the House of Representatives. The outcome of the this election will significantly impact Republican prospects for maintaining their national governing majority. If the new leader cannot convince the public that Republicans are serious about bringing spending under control, Republicans may lose control of Congress to the Democrats within the next two or three election cycles.

Two of the three leading contenders for the Majority Leader position published op-eds on the OpininonJournal.com website this week. Both sounded at least one common theme – the Republican party must reduce pork spending if it is to stay true to its principles and maintain the credibility it needs to govern effectively. (By the way, is anyone still arguing that reducing pork-spending is not a viable political issue?)

Congressman John Boehner of Ohio, considered one of the two frontrunners for Majority Leader, devoted an extensive part of his op-ed to discussing specific pork-spending reforms…

To rebuild trust in the [House of Representatives] and our commitment to governing, we need to recognize that most of the current ethical problems arise from one basic fact: Government is too big and controls too much money. If you want to dismantle the culture that produced an Abramoff or a Scanlon, you need to reform how Congress exerts power.

We must start by addressing the growing practice of unauthorized earmarks--language in spending bills that directs federal dollars to private entities for projects that are not tied to an existing federal program or purpose. The public knows the practice better by a different name--pork-barreling. Unauthorized earmarks squander taxpayer dollars and lack transparency. They feed public cynicism. They've been a driving force in the ongoing growth of our already gargantuan federal government, and a major factor in government's increasing detachment from the priorities of individual Americans….

Many pork-barrel provisions are inserted into legislation at the last minute to ensure passage, and relatively few members get a chance to see them before actually voting. My Republican colleague, Jeff Flake of Arizona, has bold ideas to solve this problem. He proposes that the earmarking process be transparent: All earmarks should be included in the actual text of legislation, so members can see them before they vote….

We need to establish some clear standards by which worthy projects can be distinguished from worthless pork, so that pork projects can be halted in their tracks as soon as they are identified. For example, earmarks should meet the specific purpose of the authorizing statute. They should not give a private entity a competitive edge unless it is in the immediate national security interest of the country. They should not be a substitute for state and local fiscal responsibility. They should be used sparingly, and ideally, they should be a one-time appropriation for a specific national need.

Congressman John Shadegg of Arizona, considered a dark-horse candidate, approves of Boehner’s proposals. As proof of his committment, he points out that he has already sponsored legislation that would have implemented them…

Yesterday John Boehner wrote on this page about a proposal to reform the earmark process offered by Rep. Jeff Flake. While Mr. Boehner is suddenly talking about this idea, I was one of the first co-sponsors when it was introduced last spring.

We need sunshine in the earmark process, and an end to secret, backroom deals. According to Citizens Against Government Waste, the total number of earmarks in 2005 was nearly 14,000--compared with only 1,439 in 1995. Earmarked money is often spent without the oversight and consideration in the regular appropriations process, so waste, abuse or even fraud is more likely. Congress should base decisions on what is good for America, not what is good for the lobbyist friends of a few.

Every year Congress adopts a budget, and every year we exceed it. Cheats and dodges--supplemental spending without offsets, "off budget" spending--hide this expenditure, but it is added to our national debt, a legacy of irresponsibility to burden future generations. We are still using a budget process that dates from 1974, when Democrats ruled the House and the government was a fraction of its current size. We need reforms in our budget rules to force Congress to stay within the budget it adopts.

The third candidate, Congressman Roy Blunt of Missouri, has not, as far as I know, taken a definitive stand on pork-reform.

Alas, as Rhode Island has no Republican Representatives in Congress, Rhode Island will have no vote in this matter. However, the mood for reform does provide a more-interesting-than-usual opening for Republican candidates interested in running in Rhode Island’s 2006 Congressional elections. There is an opportunity for an up-and-coming Republican politician to discuss his-or-her party’s principled stand on a popular and relevant issue and attach him-or-herself to the national party in a positive way. Anybody in the party interested in keeping our incumbent Representatives honest and building some statewide name recognition, all while doing the right thing?

UPDATE: (January 19, 2006)

As Marc points out in the comments, Congressman Roy Blunt of Missouri, the current Majority Whip and the other frontrunner in the election, makes his case for becomming Majority Leader at OpinionJournal.com today. It includes a section on pork-reform...

We must also reform the earmark and federal grant-making processes. Specifically, earmarks should be identified with the member who is requesting them, and accompanied by a justification for how the expenditure serves a public purpose. Grants made by federal agencies should be open to more scrutiny with the creation of a public database of all those receiving grants, along with a justification for how the grant serves the public interest.

Sheldon Whitehouse and the Appearance of Corruption

As Rhode Island’s Attorney General, Sheldon Whitehouse joined an amicus brief in support of upholding campaign finance reform laws. The reason? According to the brief, it was “essential to the health of our national democracy” to attack “the causes of cynicism and distrust that undermine our political discourse”.

Sometime between joining that brief and now, Whitehouse appears to have changed his mind. His response to Guy Dufault's personal attack on Governor Don Carcieri shows a decided lack of concern about cyncism and distrust undermining political discourse. According to Monday’s Political Scene column in the Projo…

Former Attorney General Sheldon Whitehouse does not intend to return the more recent $2,000 Dufault contributed to his Senate campaign. Why?

This response from Whitehouse spokesman Michael Guilfoyle: "Sheldon does not condone what Guy said and he doesn't believe there is any room in the political dialogue for the politics of personal destruction....It was a terrible mistake, and Guy is paying a considerable price."

But "this is between Guy Dufault and Don Carcieri," Guilfoyle said.

One side works in the public interest while another side uses the politics of personal destruction to pursue special interests. And Sheldon Whitehouse views it as a personal conflict and can’t choose between the two.

Courts approved campaign finance limitations on political activity because they found a compelling government interest in preventing the appearance of corruption. Does Sheldon Whitehouse really believe that taking big money from a lobbyist prepared to use rumor and innuendo to advance his interests is unrelated to the appearance of corruption? If Whitehouse is still interested in preventing the appearance of corruption, he should exhibit some personal responsibility in this matter and give Dufault's money back.

Apparently, leadership to Whitehouse doesn't mean taking responsibility yourself; it just means placing limits on other people.

Political Scene reports that Whiltehouse’s primary Matt Brown has returned recent campaign contributions from Dufault, as has lieutenant governor and gubernatorial candidate Charles Fogarty.

Chafee and McKay Oppose Electoral College

Senator Lincoln Chafee has decided to join California Sen. Diane Feinstein in calling for the abolishment of the Electoral College.

"Under the current system, the only states that get any candidate visits are the battleground states," said Chafee. "As a Rhode Islander . . . I'd like to see the presidential candidates make an investment in Rhode Island. The last election came down to just Ohio and Florida."

What is more, Chafee said, is that a tie in the Electoral College in a presidential election would push the decision into the House of Representatives, where each state would get one vote. That, Chafee said, would not be a representative system.

Apparently, the journalist who penned the piece also opposes the Electoral College. I assume this from the immediately detectable amount of editorialization in Scott McKay's "news" story. In describing how the Electoral College was formulated, McKay wrote

It is an irony of the 21st century that presidential elections in an era of the Internet and international jet travel are decided by the Electoral College, a system established by men -- no women were allowed to vote -- who communicated by quill pen and horseback mail and traveled by clipper ship.

The system was erected by the men who founded the United States in 1789 because they did not trust average citizens. Voting was restricted to white males who owned property. And they only allowed those voters to select one segment of the U.S. government -- the federal House of Representatives.

U.S. senators were chosen by legislatures until 1913, when popular election of senators was established. The founders established the Electoral College -- which in those days was made up of community and political leaders -- to pick the president.

As one familiar with the debate, and perhaps I'll post substantively on that in the future, it is easy for me to detect the anti-Electoral College "talking points" within McKay's prose. The allusion to modern items like the internet and jetplanes provided to accentuate the implied archaic nature of the Electoral College; the true but gratuitous line that "the Electoral College, a system established by men -- no women were allowed to vote"; that it was "erected" because the Founders didn't "trust" the average citizen, which is true but leaves a lot of the context out; and the tiresome recitation of how only white male property owners voted and how this small and exclusive group chose the President.

Now, perhaps McKay intended to convey that it was Chafee and Feinstein's argument that he was presenting. If so, he did a poor job of making that point clear. However, that he started a paragraph with the declarative "It is an irony that..." indicates to me that Mr. McKay has taken it upon himself to editorialize against the Electoral College within a news story. As such, I would urge him to confine his personal sentiments to the editorial pages where they belong.

Our Declaration of Independence

This posting relates to a previous posting on the American Founding and also relates to Liberal Fundamentalism and The Naked Public Square Revisited, Parts I, II, and III.

Thanks to Power Line for referring to a 1926 speech by Calvin Coolidge on the 150th anniversary of the Declaration of Independence. If you ever have any doubt that certain apostles of liberal fundamentalism are actively attempting to rewrite our country's history, read the entire speech. In the meantime, here are some powerful excerpts:

There is something beyond the establishment of a new nation, great as that event would be, in the Declaration of Independence which has ever since caused it to be regarded as one of the great charters that not only was to liberate America but was everywhere to ennoble humanity.

It was not because it proposed to establish a new nation, but because it was proposed to establish a nation on new principles, that July 4, 1776, has come to be regarded as one of the greatest days in history...

...Three very definite propositions were set out in [the Declaration's] preamble regarding the nature of mankind and therefore of government. These were the doctrine that all men are created equal, that they are endowed with certain inalienable rights, and that therefore the source of the just powers of government must be derived from the consent of the governed...

While these principles were not altogether new in political action, and were very far from new in political speculation, they had never been assembled before and declared in such a combination...

It was the fact that our Declaration of Independence containing these immortal truths was the political action of a duly authorized and constituted representative public body in its sovereign capacity, supported by the force of general opinion and by the armies of Washington already in the field, which makes it the most important civil document in the world...

...when we come to a contemplation of the immediate conception of the principles of human relationship which went into the Declaration of Independence we are not required to extend our search beyond our own shores. They are found in the texts, the sermons, and the writings of the early colonial clergy who were earnestly undertaking to instruct their congregations in the great mystery of how to live...

In its main features the Declaration of Independence is a great spiritual document. It is a declaration not of material but of spiritual conceptions. Equality, liberty, popular sovereignity, the rights of man - these are not elements which we can see and touch. They are ideals. They have their source and their roots in religious convictions...Unless the faith of the American people in these religious convictions is to endure, the principles of our Declaration will perish...

About the Declaration there is a finality that is exceedingly restful. It is often asserted that the world has made a great deal of progress since 1776..that we may therefore very well discard their conclusions for something more modern. But that reasoning can not be applied to this great charter. If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final...If anyone wishes to deny their truth or their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people...

In all the essentials we have achieved an equality which was never possessed by any other people...The rights of the individual are held sacred and protected by constitutional guarantees, which even the government itself is bound not to violate. If there is any one thing among us that is established beyond question, it is self-government -- the right of the people to rule. If there is any failure in respect to any of these principles, it is because there is a failure on the part of individuals to observe them. We hold that the duly authorized expression of the will of the people has a divine sanction...The ultimate sanction of law rests on the righteous authority of the Almighty...

...We live in an age of science and of abounding accumulation of material things. These did not create our Declaration. Our Declaration created them. The things of the spirit come first. Unless we cling to that, all of our material prosperity, overwhelming though it may appear, will turn to a barren sceptre in our grasp. If we are to maintain the great heritage which has been bequeathed us, we must be like-minded as the fathers who created it...We must cultivate the reverence which they had for the things that are holy. We must follow the spiritual and moral leadership which they showed...

The speech connects to an excerpt from another Power Line posting:

Knowledge of American history holds the key to much of the current discussion of political issues, such as the ongoing liberal attack on Christian belief and on arguments premised on belief in God...Absent knowledge of American history, one would never know that the United States is founded on the basis of a creed, rather than on tribal or blood lines, in which God plays a prominent part. Absent knowledge of history generally, one would never know that this fact makes America unique.

What is the American creed?...The American creed is expressed with inspired concision in the words of the Declaration of Independence...

But does the Declaration have any legal status such that these words can be truly deemed to state the American creed? It does, although virtually no one seems to know it. In 1878 Congress enacted a revised version of the United States Code that included a new first section entitled "The Organic Laws of the United States."

The Code is Congress's official compilation of federal law; the organic laws of the United States are America's founding laws. First and foremost of the four organic laws of the United States is the Declaration of Independence...

Professor Jaffa [of the Claremont Institute] teaches us that the Declaration contains four distinct references to God: He is the author of the "laws of...God"; the "Creator" who "endowed" us with our inalienable rights; "the Supreme Judge of the world"; and "Divine Providence." Americans declared their independence, "appealing to the Supreme Judge of the world for the rectitude of our intentions."

The Declaration states the American creed, the creed that recognizes the source (Nature and Nature's God) of our rights.

The Bricker Amendment

An NRO article by Andrew C. McCarthy on the subject of international law got me thinking about a Neil Boortz column I read a few months ago. About 50 years ago, a U.S. Senator named John Bricker also worried about the nature international law. Senator Bricker proposed a Constitutional amendment which read...

Section 1. A provision of a treaty which conflicts with this Constitution shall not be of any force or effect.
Section 2. A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty.
Section 3. Congress shall have power to regulate all executive and other agreements with any foreign power or international organization. All such agreements shall be subject to the limitations imposed on treaties by this article.
Section 4. The congress shall have power to enforce this article by appropriate legislation.

I have the same question Boortz does. Is there any reason not to support adding the above amendment to our Constitution?

Thanksgiving and Separation of Church and State

Since Thanksgiving is upon us, I thought I'd provide an excerpt from Paul Johnson's A History of the American People that puts the Separation of Church and State, and Thanksgiving, in their proper historical context.

'Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.' This guarantee has been widely, almost willfully, misunderstood in recent years, and interpreted as meaning that the federal government is forbidden by the Constitution to countenance or subsidize even indirectly the practice of religion. That would have astonished and angered the Founding Fathers. What the guarantee means is that Congress may not set up a state religion on the lines of the Church of England, ‘as by law established.’ It was an anti-establishment clause. The second half of the guarantee means that Congress may not interfere with the practice of any religion, and it could be argued that recent interpretations of the First Amendment run directly contrary to the plain and obvious meaning of this guarantee, and that for a court to forbid people to hold prayers in public schools is a flagrant breach of the Constitution. In effect, the First Amendment forbade Congress to favor one church, or religious sect, over another. It certainly did not inhibit Congress from identifying itself with the religious impulse as such or from authorizing religious practices where all could agree on their desirability. The House of Representatives passed the First Amendment on September 24, 1789. The next day it passed, by a two-to-one majority, a resolution calling for a day of national prayer and thanksgiving [emphasis mine].

It is worth pausing a second to look at the details of this gesture, which may be regarded as the House’s opinion of how the First Amendment should be understood. The resolution reads: ‘We acknowledge with grateful hearts the many signal favors of Almighty God, especially by affording them an opportunity peacefully to establish a constitutional government for their safety and happiness.’ President Washington was then asked to designate the day of prayer and thanksgiving, thus inaugurating a public holiday, Thanksgiving, which Americans still universally enjoy. He replied: ‘It is the duty of all nations to acknowledge the providence of 144 Almighty God, to obey His will, to be grateful for His mercy, to implore His protection and favor ... That great and glorious Being who is the beneficent author of all the good that was, that is, or that ever will be, that we may then unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people.’

There were, to be sure, powerful non- or even anti-religious forces at work among Americans at this time, as a result of the teachings of Hume, Voltaire, Rousseau, and, above all, Tom Paine. Paine did not see himself as anti-religious, needless to say. He professed his faith in ‘One god and no more.’ This was ‘the religion of humanity.’ The doctrine he formulated in The Age of Reason (1794-5) was ‘My country is the world and my religion is to do good.” This work was widely read at the time, in many of the colleges, alongside Jefferson’s translation of Volney’s skeptical Ruines ou Meditations sur les revolutions des empires (1791), and similar works by Elihu Palmer, John Fitch, John Fellows, and Ethan Allen. The Age of Reason was even read by some farmers, artisans, and shopkeepers, as well as students. As one Massachusetts lawyer observed, it was ‘highly thought of by many who knew neither what the age they lived in, nor reason, was.’ With characteristic hyperbole and venom, John Adams wrote of Paine: ‘I do not know whether any man in the world has had more influence on its inhabitants or affairs for the last thirty years than Tom Paine. There can be no severer satire on the age. For such a mongrel between pig and puppy, begotten by a wild boar on a bitch wolf, never before in any age of the world was suffered by the poltroonery of mankind, to run through such a career of mischief. Call it then The Age of Paine.’

As it happened, by the time Adams wrote this (1805), Paine’s day was done. His ‘age’ had been the 1780s and the early 1790s. Then the reaction set in. When Paine returned to America in 1802 after his disastrous experiences in Revolutionary France, he noticed the difference. The religious tide was returning fast. People found him an irritating, repetitive figure from the past, a bore. Even Jefferson, once his friend, now president, gave him the brush-off. And Jefferson, as president, gave his final gloss on the First Amendment to a Presbyterian clergyman, who asked him why, unlike Washington and Adams (and later Madison), he did not issue a Thanksgiving proclamation. Religion, said Jefferson, was a matter for the states: ‘I consider the government of the United States as interdicted from intermeddling with religious institutions, their doctrines, disciplines, or exercises. This results from the provision that no law shall be made respecting the establishment of religion, or the free exercise thereof, but also from that which reserves to the states the powers not delegated to the United States. Certainly no power over religious discipline has been delegated to the general government. It must thus rest with the states as far as it can be in any human authority.’ The wall of separation between church and state, then, if it existed at all, was not between government and the public, but between the federal government and the states. And the states, after the First Amendment, continued to make religious provision when they thought fit, as they always had done. [Paul Johnson, A History of the American People, p. 144-45]

To be sure, many of the founders were not what we today would consider conventional Christians (rather, they were deists), but most recognized the importance of organized religion in society. (For more on the deism of the Founders, refer to p.141-44 of Johnson's History).

With that, I wish you all a Happy Thanksgiving. (I may be around some time this weekend, but I have a tour of southern New England scheduled, so free time, much less blogging time, will be at a premium).

ADDENDUM: I'd also recommend Ken Masugi's piece, which touches on the same theme and points to the Thanksgiving Proclamations of Presidents George Washington and Abraham Lincoln.

Bush v. California

Froma Harrop walks a strange line between liberal and conservative principles in a recent column about economic differences between the Red States and the Blue States, and the tax-cut implications thereof. It's a thick topic, even when it isn't encumbered by an underlying theme of pinning something undesirable to President Bush's back. Consequently, I'm not inclined to take it up, just now.

However, something that protrudes from the column almost as a tangential distraction strikes me as telling, and in a way that's relevant to the rest of the piece:

California seems poised to profit from both Bush's tax cuts and his moral disapproval of embryonic-stem-cell research. We speak of California's vote Tuesday to spend $300 million a year on this promising field. The sum makes a mockery of the measly $25 million Bush doled out last year -- and only for work on existing stem-cell lines.

This investment will make California the stem-cell champ of America, if not the world. Biotech centers in other regions now fear a brain drain to California. And economists say the program could bring the state a bonanza in jobs and patent royalties worth hundreds of millions.

What, precisely, is Harrop's understanding of federalism? Ethics aside, is it the federal government's role to invest heavily enough in lucrative research so as to prevent any given state from dominating the market? Moreover, is it the government's role to put ethics aside so as to give states a fair share of the profit from endeavors of which their citizens want no part?

I'd be surprised to learn that there's a subindustry of Tupelo biotech companies now fearing the loss of faculty because Cali has become the place to do immoral research. And as far as I know, California's decision to fund the research isn't the result of some loophole that's not available to other states. Red-State Americans can invest in ESCR by way of their governments, just as they can invest in it individually. That's another distinction that Harrop loses:

No one has made a connection between the Bush tax cuts and the research, but someone should. The tax cuts have made California $51 billion richer. So Californians can think of the $3 billion they will spend over the next 10 years as found money.

Correction: the tax cuts have made Californians that much richer. That's not the same thing. If the citizens of the Golden State choose to process their research-funding dollars through a corrupt bureaucracy, that is their right. At least the poorer citizens of fly-over country aren't being forced to devote their hard-earned money on Blue-Staters' hot-flash quest for immortality.