Archive for February 25th, 2013

So I heard about this story on the way home. Back in November, Tyndale House Publishers (They publish Bibles and other religious materials) sued to enjoin the HHS from imposing its mandates upon it, and this interesting exchange took place at the hearing:

Benjamin Berwick [DOJ Flunky]: “Well, your honor, I think, I think there are two distinct ideas here: One is: Is the corporation itself religious such that it can exercise religion? And my, our argument is that it is not. Although again, we admit that it is a closer case than for a lot of other companies. And then the second question is, can the owners–is it a substantial burden on the owners when the requirement falls on the company that is a separate legal entity? I think for that question precisely what their beliefs are doesn’t really matter. I mean, they allege that they’re religious beliefs are being violated. We don’t question that. And we don’t question that that is the belief.

Judge Reggie Walton: But considering the closeness of the relationship that the individual owners have to the corporation to require them to fund what they believe amounts to the taking of a life, I don’t know what could be more contrary to one’s religious belief than that.

Berwick: Well, I don’t think the fact this is a closely-held corporation is particularly relevant, your honor. I mean, Mars, for example–

Judge Walton: Well, I mean, my wife has a medical practice. She has a corporation, but she’s the sole owner and sole stock owner. If she had strongly-held religious belief and she made that known that she operated her medical practice from that perspective, could she be required to pay for these types of items if she felt that that was causing her to violate her religious beliefs?

Berwick: Well, Your Honor, I think what it comes down to is whether there is a legal separation between the company and—

Judge Walton: It’s a legal separation. I mean, she obviously has created the corporation to limit her potential individual liability, but she’s the sole owner and everybody associates that medical practice with her as an individual. And if, you know, she was very active in her church and her church had these same type of strong religious-held beliefs, and members of the church and the community became aware of the fact that she is funding something that is totally contrary to what she professes as her belief, why should she have to do that?

Berwick: Well, your honor, again, I think it comes down to the fact that the corporation and the owner truly are separate. They are separate legal entities.

Judge Walton: So, she’d have to give up the limitation that conceivably would befall on her regarding liability in order to exercise her religion? So, she’d have to go as an individual proprietor with no corporation protection in order to assert her religious right? Isn’t that as significant burden?

The correct answer, for those who didn’t pay attention in class, is “HELL YES, IT IS A SIGNIFICANT BURDEN!”

Corporations are private property. Even if you own publically traded stock, it is still private property. Why do people own private property? To do with it as they wish. If I can’t act through a corporation I own in a manner consistant with my Constitutionally protected beliefs, then how, exactly, do we still have a First Amendment?

I think the Judge understands that as it applies to personal services corporations, which are extentions of their owners, the government model becomes completely disconnected from reality, which is why he issued the injuction.

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“In the Second Article, it is declared, that a well regulated militia is necessary to the security of a free state; a proposition  from which few will dissent.  Although in actual war, the services of regular troops are confessedly more valuabl; yet while regular peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium [safeguard] of the country…

The corollary from the first position is, that the right of the people to keep and bear arms shall not be infringed.

No clause in the Constitution could by any rule oc construction be conceived to give Congress a power to disarm the people.  Such a flagititious [infamous or scandalous] attempt could only be made under some general pretence by a state legislature.  But if in any blind pursuit of inordinate power either should attempt it, this amendment may be appealed to as a restraint on both.

In most of the countries of Europe, this right does not seem to be denied, although it is allowed more or less sparingly, according to circumstances.  In England, a country which boasts so much of its freedom, the right was assured to Protestant subjects only, on the revolution of 1688, and it is cautiously described to be that of bearing arms for their defence “suitable to their conditions, and as allowed by law.” An arbitrary code for the preservation of game in that country has long disgraced them.”

William Rawle, A VIEW OF THE CONSTITUTION, p.125-126 (2nd ed. 1828)

William Rawle was a Philadelphia lawyer appointed to be the United States District Attorney for Pennsylvania by President George Washington in 1791, and Trustee of the University of Pennsylvania from 1796 until his death, and the Chancellor of the Philadelphia Bar.

But I’m sure he simply didn’t understand that the right to bear arms was subject to whatever restrictions, conditions, and limitations that politicians in local, state, and Federal government could bleat effectly about being “reasonable”, and therefore legitimate limitations upon the right, because government would never, ever abuse power, and usurp authority not reserved to it, right?

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