Incorporate this!

It seems like every news program and radio station is talking about this ground zero mosque non-stop. I have heard a number of arguments on all fronts and I think it’s worthy of expressing some of my thoughts on it. First of all is this an issue of property rights and the right of association? Is this a 1st amendment issue of religious freedom, sensitivity, Islamaphobia? Regardless of how you come down on the issue, it seems as if people are very emotional in the arguments for and against the building of this mosque. First of all we look to the constitution and through the 1st and 10th amendments we can plainly see the federal government has no say whatsoever in whether a church, synagogue, or mosque gets built in any city. The 1st amendment bans the federal government from being involved in any way and this is an issue for State and local governments, in this case NY City.


What about the supremacy clause and the incorporation doctrine? This to me is the bigger issue here more than anything else. For years now we have people from the political right and left rely on this concept that federal law is supreme over local laws (in violation of the 10th amendment) In an attempt to create national policy on everything from marriage to gun control. As an example; people on the left say the 4th amendment guarantees a “right to privacy” which is the primary justification for abortion and they have already succeeded to enshrine this into our laws. Conservatives on the other hand shouted and rejoiced over the recent Chicago gun ban overturned by the Supreme Court, which was done with the justification that the 2nd amendment is “incorporated” and “supreme” to any local law or ordinance that placed restrictions on gun ownership. Both conservatives and liberals are wrong on these issues, because these decisions are not consistent with a republican form of government guaranteed by the constitution. In plain words, we don’t get to run to the federal government every time our State and local governments pass a law we don’t like. The little “r” republican solution is that we petition our local governments to change the law, vote for different people, and in a worst case scenario we move to a different city or state. If we continue to turn over the power to make those decisions to the federal government we have to live with whatever they enshrine into law. If they make really bad policy there is no escape unless you leave the country completely.

Common sense tells us that a State or City government has a right to prohibit guns in some places (like a court house) and can place restrictions on who may own guns (mentally disabled and violent criminals). Common sense would also tell us that not everything that happens in”private” is free from prosecution. In the case of this mosque, it would be perfectly acceptable for any city government to create zoning ordinances and allow or disallow the construction of any religious building in places they deem appropriate. I can’t walk into Fenton city hall and demand that I have a 1st amendment right to build a mega church any place within the city limits that I want. This mosque issue is not a 1st amendment issue and the people asking that the developers reconsider the site are not necessarily islamaphobes. NY City has made their decision and the 9/11 families and other New Yorkers are making their opinions heard. As long as the issue stays within this realm, it sounds perfectly acceptable and constitutional to me. I’m afraid at some point this type of case will end up before the Supreme Court to consider 1st amendment issues and in that day, I fear, a little more of our liberty will be taken from us. Living within a republican form of government is not always easy because we don’t get to scapegoat some “higher authority” like the federal government, but we have to actually go out and talk to our neighbors that work as city councilmen and State representatives. Having the form of government envisioned by our founders does not guarantee perfection, it only protects against an out of control central authority.

fides quaerens intellectum