Wednesday, May 21, 2008

When The Constitution Hangs By A Thread--Part Two

Let us very quickly review two of the Constitutional Amendments which apply to the FLDS situation in Texas:

  • First Amendment: addresses the rights of freedom of religion (prohibiting Congressional establishment of a religion over another religion through Law and protecting the right to free exercise of religion), freedom of speech, freedom of the press, freedom of assembly, and freedom of petition.

  • Fourth Amendment: guards against searches, arrests, and seizures of property without a specific warrant or a "probable cause" to believe a crime has been committed. Some rights to privacy have been inferred from this amendment and others by the Supreme Court.

And here are two other Amendments which may very likely come into play before the trial has run its course:

  • Fifth Amendment: among other things, forbids punishment without due process of law; and prohibits government from taking private property without just compensation.

  • Sixth Amendment: guarantees a speedy public trial for criminal offenses. It requires trial by a jury, guarantees the right to legal counsel for the accused, and guarantees that the accused may require witnesses to attend the trial and testify in the presence of the accused. It also guarantees the accused a right to know the charges against him.

These form part of the Bill of Rights, which consists of the first ten Amendments to the Constitution. In addition, I would like to provide a definition of statutory rape:
The criminal offense of statutory rape is committed when an adult sexually penetrates a person who, under the law, is incapable of consenting to sex. Overt force or threat need not be present. The age of consent and other differentials are to be determined by the state. In Texas, for instance, the age of consent is 17 and the minimum age of child is 14 with an age differential of 3 years; thus, individuals who are at least 14 years of age can legally engage in sexual activities if the defendant is less than 3 years older than the accuser. In addition, Texas stipulates an exception to their statutory rape laws if the adult and child are legally married during the time of commission of sexual conduct.

I must point out that the state has yet to uncover a single case of statutory rape. They are unable to show that any law has been broken. They rely on rumor, bigotry, and the assumption that all the FLDS are equally guilty. Perhaps there will be a few cases which could better, more cheaply, and with less psychological damage be investigated by observing the few girls between the ages of 14 and 17 in their own environment, with the men removed from the situation. On the other hand, those who have been following recent news reports are aware that

  1. Texas CPS is violating the First Amendment by their disregard for the religious practices of the FLDS. Parents have said their children's copies of the Book of Mormon were removed because photographs of Jeffs were taped inside. Caseworkers also have said collections of sermons by Jeffs and other FLDS prophets need review before they are given to the children. There's a slight problem with this line of reasoning. Under the Constitution, parents can teach their children ANYTHING, with no exceptions. Even parents' teaching children to revere a convicted criminal is NOT grounds for terminating parental rights. Jesus was a convicted criminal in the eyes of the law. We don't terminate the parental rights of Christians.

  2. Texas CPS was aware of the fraudulent nature of the phone call reporting abuse before entering the YFZ ranch and seizing children and evidence and desecrating their temple; violating the Fourth Amendment..

  3. Texas officials have been directed to investigate the possibility of using the assets of the ranch to pay for the costs of the debacle (Fifth Amendment).

  4. The Texas court system is punishing innocent parties who have no connection to statutory rape by considering the entire community of over 700 people as one household (Fifth and Sixth Amendments).

There are many, many other problems happening in this case. One wonders what the specific individual charges against each family could be that would keep them from their children until next April; and why issues such as homeschooling, location of residence, educational and vocational training and religious affiliation should be addressed in the plans for their reunification. The families were legally schooling their children, and all were self-supporting. None were found to be on government assistance.

Let us look at but one example. Louisa Barlow Jessop is age 22. She is one of the three girls who were found to be pregnant at the time of the seizure. CPS would not initially accept her legal documentation as proof of her age, but tried to classify her as a minor. She and her husband Dan are not polygamists. They have two children ages 2 and 3; and she gave birth to another on May 12. The couple is subject to the same plans as the other families, meaning the earliest they might hope to regain custody of their children is next April. Judge Thomas Gossett said a "wide loop" had been thrown around the FLDS community that might not fit all parents. If those allegations prove unfounded, "I'll be the first to apologize to you if it turns out you're not a person who has abused your child," the judge told Dan Jessop, who was in the courtroom. "There is no proof of abuse in your case. That gives you a leg up." I'm sure this apology appeases a family who has been separated for over 6 weeks already, and has no hope of being together or back in their home for at least a year. Reading case after case of similar stories breaks my heart.

Because this case is so very similar to the violations perpetrated against the Latter-day Saints in the nineteenth century, I find it incomprehensible that the Mormon Church has done nothing but distance themselves from the case. For a people who considers themselves the defenders of the Constitution, even the very ones who will save it when it is dangling by a thread, I cannot understand this position.

LDS attachment to the Constitution has been encouraged by an important oral tradition deriving from a statement attributed to Joseph Smith, according to which the Constitution would “hang by a thread” and be rescued, if at all, only with the help of the Saints. Church President John Taylor seemed to go further when he prophesied, “When the people shall have torn to shreds the Constitution of the United States the Elders of Israel will be found holding it up to the nations of the earth and proclaiming liberty and equal rights to all men” (Encyclopedia of Mormonism, Vol. 1, CONSTITUTION OF THE UNITED STATES OF AMERICA.)

The Prophet Joseph told us that he saw the day when even the Constitution of the United States would be torn and hang as by a thread. But, thank the Lord, the thread did not break. He saw the day when this people would be a balance of power to come to its defense. (Melvin J. Ballard, Conference Report, October 1928, p. 108)

I have two questions for my readers.

Do you agree that the way this case has been handled weakens the Constitution?

Do you feel that Joseph Smith's prophecy compels us to respond? If not, why? And if so, what can we do as an institution and/or individuals?


JDD said...

You should know that the so-called "white horse prophecy" you cite is not generally considered a valid "revelation" by the LDS population at large. If anything, we kind of snicker at it.

RWW said...

The Constitution was hanging by a thread when Prohibition was law, and members of the Church more or less saved it when they voted to repeal Prohibition.

But today I'd argue that the Constitution hasn't been in effect for quite some time.

Anonymous said...

I am much more troubled about domestic spying and use of the entire government apparatus for partisan objectives.

At least in the YfZ case, the intent to make sure vulnerable children are safe is clear to me. I see that as very much in tune with the objectives of the Constitution to protect the vulnerable from the powerful.

anonymous alice

Anonymous said...

Adding, the church made it very clear where it stands on supporting the Constitution when it directed all the resources it had at blocking full protections and equality to half of the citizens of the US.

I will never forget the church's role in blocking passage of the ERA.

Unknown said...

anonymous and RWW,
As is implicit in your comments, what it means for the Constitution to hang by a thread (even if we were to accept the validity of such revelation) is not entirely clear. However, it's at least implied that such thread-hanging involves something violative of the Constitution.

A properly-enacted amendment, such as Prohibition, cannot, by its terms, violate the Constitution, so Prohibition could not, by its very terms, violate the Constitution.

And as for the ERA, it's fair to argue about whether it was good policy or not to implement (and I am too young to have had any interest in it at the time), but if someone felt an amendment was necessary, then acting against the proposed amendment could not violate the Constitution (because there was something about the Constitution that needed to be changed). If, however, the ERA had been passed and the Church encouraged its violation, the Church would have been acting against the Constitution (although not unconstitutionally because generally private citizens can't violate the Constitution, with a couple exceptions).

I agree, though, that, as bad as Texas's actions have been, I'm more concerned on a macro level with the Bush administration's ignoring of the Constitution.

Tim said...

I don't think the Texas actions have hurt the Constitution--nor has the Bush administration. The Constitution is not hanging by a thread.
As for the Joseph Smith comment--I was born and raised in the South--always LDS--and I never heard that quote until I was an adult living in CA. If this is official Church "doctrine" then why isn't taught in all of our lessons and why aren't there more talks about it?
Domestic syping? Any proof? And on who?

Tim said...

You never gave proof that the Texas CPS "knew" that the call was fraudulent. If you have proof you should publish it instead of just throwing it out there.
Why do think the Church needs to come to the defense of the FLDS?

LaurieSue said...

In answer to your 1st question, YES-- I believe the constitutional rights of the FLDS have been violated. It will take time for all of this to be sorted out in court, but I sincerely hope that the judicial system will not fail to right the wrongs that have been committed. If justice does not prevail, then our constitution will have been seriously weakened by this case.

I do believe that we, as members of the church, have a special responsibility to protect and preserve the Constitution and speak out against injustice. But I also believe that this responsibility rests with individual members, and not the Church organization as a whole.
I don't feel that the church has distanced itself from the FLDS situation so much as it has made an important clarification that we are not, in any way, affiliated with the FLDS church. The Church has worked long and hard to dispel misconceptions about our beliefs, so that clarification was appropriate and necessary. The Church doesn't usually take official positions on political issues or prominent cases, so it is not unusual that it has not gotten involved with this one.

I am grateful that the church encourages us to be active citizens and do our part to protect and preserve the constitution. I'm also glad that the church doesn't dictate how we should feel about every political measure or constitutional case.
Many members agree with the actions taken against the FLDS, while many of us are very upset by it. So we are free to decide how we, as individual citizens, will stand up and do our part. (LaurieSue, formerly PTALady)

Anonymous said...


The ERA sought to specify equal protections for women because the protection implied by the equal protections clauses of the Constitution were regularly and systematically denied to women in business, in civil and in domestic situations. Even more then than today.

The church worked to ensure that it would continue to be possible to regard and treat women as second class citizens. LDS women may accept that on a one to one basis within their families and, certainly, in the church. But it was WRONG for the church to subject half of the population of the country to systematic marginalization.

The great excuse then was that women would have to use unisex bathrooms. My home has one. Does yours? And that women would be drafted (the draft still existed then). Exactly what would US armed forces be like today without women? The military can't meet recruitment goals even with an enrollment that is 20% female. And when Gen. Janet Karpinski had the responsibility for the abuses of Abu Ghraib dumped, single-handedly, on her shoulders I bet she wished for a little Constitutional protection.

I may take some comfort in knowing that when the Authorities speak they take on the responsibility for the justice of a situation but it doesn't make me one bit more comfortable about something that I have never gotten over and probably never will.

anonymous alice

Anonymous said...

The proverbial thread strengthens.

Bored in Vernal said...

JDurrant, I have not championed the "white horse prophecy" as a valid revelation. However the "Constitution hanging by a thread" rhetoric has been reiterated by many of the prophets and GA's in General Conferences up to very recently.

Anon, I agree that the LDS Church participated in weakening equal rights under the Constitution by undermining the ERA. This issue probably deserves its own post.

I don't know a lot about Prohibition, but am under the impression that Church authorities advised members to vote for it, but that they didn't listen and instead Utah was instrumental in stopping it. I could be wrong here. I welcome more comments on this point.

Tim, Of course I have no proof, but news reports have stated that Texas CPS was able to trace the calls to Colorado before the raid, and that the FBI linked them to Swinton, a known maker of prank calls. Despite this, they continued with the removal of the children alleging that they had found "evidence" that the children were in danger.

LaurieSue, Thank you for your comment, I think I mostly agree with you. But I am disconcerted by the contrast in how the LDS Church officially responds to the issue of Gay Marriage. I will elaborate on this in my next post.

RWW said...

Sam: You can only harm the Constitution by directly violating it? Passing ridiculous amendments contrary to its original purpose doesn't put it in any danger? That's some very odd logic.

Don't expect me to follow your unilateral definition of thread-hanging.

I don't know a lot about Prohibition, but am under the impression that Church authorities advised members to vote for it, but that they didn't listen and instead Utah was instrumental in stopping it.

Yes, that's exactly what I was referring to when I said that the members had, in a way, saved the Constitution.

Anonymous said...

I just wabt to say that I am overjoyed fro freedom and justice in America. News has just some from the NYTs that the evidence of danger to the children was legally and factually insufficient to justify the removal and that the lower court had abused its discretion in failing to return the children to the families. I wept for joy and I am not even a Mormon. These are dark times for America when our civil rights and our country are hanging by a thread and the public hides its head in the sand with the help of the media. We are marching toward an all knowing poilice state who controls evrymove we make. Fight the national ID. South Carolina has refued it. Has your state? Support the people seeking the truth about 9/11. Seek the truth about the 800 FEMA camps which have guards and barbed wire fences and no inhabitants. Seek the truth about the prisons which are run by private companies and built by Halliburton. If we hide our heads we lose our nation and will be forced into an uprising which our forefathers recommended in case of a corrupt government.

Anonymous said...

"white horse prophecy" has been reduced to a "being bucked-off the 25-cent mechanical horse ride in front of Walmart" prophetic misunderstanding with the recent blow to prop 22 in the CA supreme court.

its going to take one hell of an effort (which i think the church administration is not capable of doing) to bring the constitution full-circle. heck, they can even run the state of Utah.

then again, there lies the conflict of interest the church faces.

if the church wants to continue their large gains world-wide, or rather outside the US, it going to have to lose its "patriotic attitude (as prevelant in the state-side congregations)" and adopt a more liberal stance, meaning not defending what every nation outside the US and the UN despise - the US Constitution.

i agree with rww that the constitution hasn't been in effect for quite some time. and i might add that the church has recently benefited from its inaction...

back row skeptic

Bored in Vernal said...

Thought I would include for you this link to George Cobabe's FAIR article on the White Horse prophecy, including the text of the prophecy.

Merlin said...

"if the church wants to continue their large gains world-wide, or rather outside the US, it going to have to lose its "patriotic attitude (as prevelant in the state-side congregations)" and adopt a more liberal stance, meaning not defending what every nation outside the US and the UN despise - the US Constitution."

I agree with the main point of your comment, that the church needs to shed some of it's "patriotism". It's great for US members, but in other countries, such extreme nationalism is offensive. In Spain, members were agast when I mentioned that our national anthem was in the US hymnal.

However, I disagree with your comment that every nation despises our constitution. They don't despise our constitution. They despise our policies and practices and the way we have pushed our weight around over the last 20 years with little to no regard to other countries rights. Our actions and the provisions of our constitution are different.

As far as the person talking about the ERA...I don't understand your argument (sorry, I too didn't grow up in that era). If you say that today women take part in almost all aspects of the military, and you are sure they are a vital and intregal part of our fighting force (and I agree that they are), then why do we need an ERA?

As far as Gen. Janet Karpinski and Abu Ghraib, don't cry sexism on that please. Commanders are always ultimately held responsible for the actions of their troops. I know of dozens of examples of this (all men), and just because they are not highly publicized doesn't make it any less significant.

She WAS being treated equally to her male counterparts throughout the military.

Tim said...

I'm so glad I've met you--really. I really enjoyed watching you in action on Sunday--I wish you had been my Seminary teacher (we had a really strange--strange--seminary teacher).
I found this about the Church saving the Constitution:
I found it an interesting read--especially when two prophets seem to say it never happened. And even the quote you have says Joseph Smith "allegedly" said. It's pretty interesting stuff.
BTW--unless the info comes from Fox News I wouldn't believe it--haha.