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Posted by john william kurowski on March 05, 19101 at 13:46:49:
In Reply to: lectures given by the good justice scalia posted by eric carlson on February 28, 19101 at 15:28:49:
Follow the link below for Scalia's lecture!
If Justice Scalia believed what he preached at Princeton last week regarding
an adherence to the intent of the framers and ratifiers,
[ http://www.dailyprincetonian.com/Content/2001/02/26/news/938.shtml ]
he would not have given the cuncurring opinion he did in the Finely case.
The following article "Enemies of our Republic" will explain...see the
Finely case link for Scalia's concurring opinion giving his tacit approval
to taxpayer funded art through the NEA in spite of the framers and ratifiers
specific rejection of such power being granted to Congress.
[doentation provided]!.
AMERICAN CONSTITUTIONAL RESEARCH SERVICE
Box 4474, Seminole, FL 33775 Phone:
March, 2001
Enemies of our Republic
A Washington Times Feb. 21 Editorial, "Yo philistines", is quite saddening
because it focuses on the same old tired bread-and-circus debate concerning
taxpayer funded art, and neglects to identify enemies of our
constitutionally limited Republic, especially those in Congress embled
and those on the Supreme Court of the United States!
Republicans in Congress have for many years argued it is reprehensible for
taxpayer dollars to be used to fund ography. Congressional Democrats
have responded that a denial of taxpayer dollars to artists, because their
work may be subjectively perceived by some as being ographic or
otherwise objectionable, would be censorship and violate these artists’
First Amendment rights. The truth is, these carefully orchestrated strawman
arguments cleverly leave in tact a continued misappropriation of federal
revenue, and avoid a discussion of the 1st Amendment rights of those forced
by folks-in-government to fund the personal expressions of others, and the
subjugation of their constitutional guarantees!
In 1998, the U. S. Supreme Court ruled on the constitutionality of
legislation requiring the National Endowment for the Arts (NEA) to ensure
that "artistic excellence and artistic merit are the criteria by which
[grant] applications are judged, taking into consideration general standards
of decency and respect for the diverse beliefs and values of the American
public." [see National Endowment for the Arts v. Finley
http://www.csulb.edu/~jvancamp/doc28.html
Karen Finley became well known for a public performance in which she
stripped to her and covered herself with chocolate syrup. The case
cited involved an alleged violation of Finley’s freedom of expression rights
with regard to a denial of a NEA grant of approximately $7,000. The Court
found "respect for the diverse beliefs and values of the American public",
as a test in rejecting such a grant, did not violate the 1st Amendment
rights of Karen Finley. In so ruling, the Court gave its tacit approval that
such grants are lawful expenditures of Congress. But are they?
To put this matter into perspective, it is essential to first understand a
fundamental principle of constitutional law: "Perhaps the most basic of all
the rules of constitutional construction (since it is the rule which all
other rules may be said to be designed to implement) is the principle that a
constitution is to be given the effect and meaning contemplated by its
framers and by the people who adopted it..." [ see Vol 16 American
Jurisprudence (constitutional law) Sec. 91].[1]
So, what was the "intent" of the Framers and Ratifiers with regard to
Congress’ role in the promotion of art?
Upon researching the record of the Constitutional Convention of 1787, we
find Delegate Charles Pickney, on August 18th, proposed a broad power "To
establish seminaries for the promotion of literature and the arts and
sciences", but this proposal was rejected by the Convention in favor of a
limited grant of power expressed in Article 1, Section 8, Cl.8, of the
proposed constitution. The limited power, later agreed upon by ratification,
authorizes Congress "[t]o promote the Progress of Science and useful Arts,
by securing for limited Times to Authors and Inventors the exclusive Right
to their respective Writings and Discoveries."
Contrary to the Courts’ suggestion that federally appropriated NEA grants
are constitutional if content does not offended "...general standards of
decency..." etc., the historical record clearly shows the Framers and
Ratifiers intentionally rejected a power being delegated to Congress to
finance the arts, and, this irrefutable fact was eloquently re-affirmed by
Representative John Page while speaking before The House of Representatives
on February 7th, 1792, to wit: "The framers of the Constitution guarded so
much against a possibility of such partial preferences as might be given, if
Congress had the right to grant them, that, even to encourage learning and
useful arts, the granting of patents is the extent of their power. . . ".
This brings us to the Courts’ actual ruling which declares it was not a
violation of Finley’s First Amendment rights for the NEA to reject her grant
if such funding were to be used in a manner as would offend a "respect for
the diverse beliefs and values of the American public". But the First
Amendment is silent in regard to "offensive speech", and unequivocally
declares: "Congress shall make no law...abridging... freedom of speech...",
which is exactly what takes place when the force of government is used to
finance a selected individual’s personal expressions in a more forceful
fashion than the expressions of those taxed to fund the personal expressions
of others!
Surely, the allowing of such a grant, regardless of content as applied in
the Finley case, would be a misappropriation of federal Treasury revenue,
would conflict with the well established tenet of "equal law"; would be an
abridgement of freedom of expression in that it would bolster one Taxpayers’
expressions over other Taxpayers expressions using the force of government;
and would, if allowed, as warned by the above mentioned Representative John
Page [here paraphrasing another part of his statement before the House],
allow Congress to: elevate selected individuals with views favorable to
government above the general public; be inattentive to men unfriendly to the
views of Government; reward the ingenuity of the citizens of one State, and
neglect a much greater genius of another! This, the Court, has agreed to
ignore.
In conclusion, the real debate is not one concerning decent or indecent art,
it is a debate concerning the very foundation of our constitutionally
limited government; the exercise of power not authorized by the
Constitution; the misappropriation of Federal Treasury money; the
willingness of Congress to abridge freedom of speech prohibited by the
Constitution; and, the Supreme Court aiding and abetting in this tyrannical
practice!
Justice O'CONNOR, delivered the opinion of the Court in the Finely case in
which, REHNQUIST, STEVENS, KENNEDY, and BREYER, joined. GINSBURG, joined in
part. SCALIA, filed an opinion concurring in the judgment in which THOMAS
joined. SOUTER, gave a dissenting opinion. [2]
John William Kurowski
Founder
American Constitutional Research Service
Seminole, FL
[1] Also see Senate Report No. 21, 42nd Cong. 2d Session 2 (1872), reprinted
in Alfred Avins, The Reconstruction Amendments’ Debates 571 (1967), which
instructs us: "In construing the Constitution we are compelled to give it
such interpretation as will secure the result intended to be accomplished by
those who framed it and the people who adopted it...A construction which
would give the phrase...a meaning differing from the sense in which it was
understood and employed by the people when they adopted the Constitution,
would be as unconstitutional as a departure from the plain and express
language of the Constitution." And, see Rhode Island v. Machusetts, 37
U.S. (12Pet.) 657,721(1838), in which the .Supreme Court has pointed out
that construction of the constitution"...must necessarily depend on the
words of the Constitution; the meaning and intention of the conventions
which framed and proposed it for adoption and ratification to the
Conventions...in the several states...to which this Court has always
resorted in construing the Constitution."
[2]See below link to learn if your Representative voted to subjugate your
rights, and compel you to fund the personal expressions of others!
http://clerkweb.house.gov/cgi-bin/vote.exe?year=1999&rollnumber=473
[Permission is hereby given to reprint this article if credit to its author
and the ACRS appears in such reprint. No copyright is claimed for quotes
within the article which are public domain materials.]