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The Constitutional Test Aid to Israel is Unconstitutional - Part 3

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Our first two parts of this series brought some interesting and thoughtful comments, more than the expected favorable responses and some bitter attacks, such as our series was anti-Semitic. A spirited debate followed on one Facebook group, only to be suddenly ended without allowing my last rebuttal. Were we hacked from the great unknown??? Of course this is not an anti-Semitic attack, as the arguments here can be used to attack the spending of our taxpayer money by Congress to aid the aggressive or intolerant activities of any religious group or nation whether pursuant to treaty or otherwise. Israel just happens to be the biggest current recipient and best example of the misdirection of our funds.

Congress has the sole power over the purse strings. The President cannot tax nor can he spend money not authorized by Congress. We cannot confuse foreign affairs with spending money.The. Constitution: Article1 Section 7: "All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills." They cannot be proposed by the President, Secretary of State or Israel. How inconvenient.

A treaty cannot obligate Congress to fund any activity that Congress is forbidden to fund by the Constitution, at least by any amendment added after th adoption of the Constitution containig the treaty power as such an amendment, unless other wise expressly limit, must be read to apply the restrictions throughout the complete document. Our Construction is public knowledge and any country entering into any agreement with the United States must be held to have knowledge of the limitations on our Constitutional treaty powers. Also applying the First Amendment to our Foriegn Relations is consistent with applying it to other Federal government action and actions by the States, which our Supreme Court has clearly done (see cases later)

One critique pointed out that the party in the case opinion quoted in part 1 actually won the case finally. This points out how very important the factual foundation of each case is, and how expensive putting a case together like this will be, especially in the current legal atmosphere where every wrong is entitled to a good defense.

Nothing more clearly emphasizes the importance of how the facts are presented in a First Amendment establishment case than the 1989 case, County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 109 S. Ct. 3086, 106 L. Ed. 2d 472. In Allegheny, a Pennsylvania county appealed a lower court ruling that had banned two separate holiday displays: a crèche [a set of statues that represents the scene of Jesus Christ's birth displayed during Christmas] situated next to poinsettia plants inside the county courthouse, and an eighteen-foot menorah (a commemorative candelabrum in the Jewish faith) standing next to a Christmas tree and a sign outside a city-county office building. Each religious symbol was owned by a religious group--the crèche by the Catholic Holy Name Society and the menorah by Chabad, a Jewish organization. Viewing the displays in context, the Court permitted one but not the other, and its reasoning turned on subtle distinctions. These cases frequently end in 5 to 4 decisions.

The Court deemed the crèche an unconstitutional endorsement of religion for two reasons. First, the presence of a few flowers around the crèche did not mediate its religious symbolism in the way that the secular symbols had done for the crèche in Lynch. Second, the prominent location doomed the display. By choosing the courthouse, a vital center of government, the Court said the county has sent "an unmistakable message" that it endorsed Christianity.

But the menorah passed constitutional review. Like the crèche in Lynch, its religious significance was transformed by the presence of secular symbols: the forty-five-foot Christmas tree and a sign from the city's mayor that read, "During this holiday season, the city of Pittsburgh salutes liberty. Let these festive lights remind us that we are keepers of the flame of liberty and our legacy of liberty." Even so, members of the majority disagreed on precisely what message was sent by the display. Justice Harry A. Blackmun read it as a secular message of holiday celebration. In a more complicated view, Justice Sandra Day O'Connor said it "acknowledg[ed] the cultural diversity of our country and convey[ed] tolerance of different choice in matters of religious belief or non-belief by recognizing that the winter holiday season is celebrated in diverse ways by our citizens." Whatever the exact message, the majority agreed that it did not endorse religion. For discussion of this and more cases see.

The basic test still recognized by the Court, is that a statute is valid as long as it has a secular purpose; its primary effect neither advances nor inhibits religion; and it is not excessively entangled with religion. Because this three-pronged test was established in Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971), it has come to be known as the Lemon test. Although the Supreme Court adhered strictly to the Lemon test for several decades, since the 1990s, it has been slowly moving away from that test without having expressly rejected it. Further essays will examine the potential application of that test to our aid to Israel, especially millitary aid to Israel


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AB 1959 and JD 1963, University of Missouri, Columbia. 50 years active member of Washington State Bar Association, mostly civil and commercial office, trial and appellate practice and Superior Court Arbitrator for about 40 years or so, since the (more...)
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