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Archive for July, 2015

Principled Constitutionalism and Gay Marriage

 

Background   

On June 26, 2015 the United States Supreme Court ruled 5-4 in favor of gay marriage. It was an historic event that thrilled the gay and lesbian communities as well as for those who were in the forefront of protecting America’s civil rights and liberties. Proponents loved the decision while opponents cried foul. Those who cried foul were very vitriolic in their condemnation of the U.S. Supreme Court’s majority decision on gay marriage. There were even public statements from the dissenting Justices on the Supreme Court (Thomas, Roberts, Alito, and Scalia).

What is kind of amusing is that the dissenters on the court could have kept their dignity as Justices by simply remaining silent.

Instead, they came out of the woodwork like a bruised termite to give voice to their own personal underlying value judgments in a smoke screen couched in constitutional jargon to support their own political viewpoint and biases. The same just as easily could have happened with the Justice Kennedy majority had the decision been reversed in favor of no constitutional right to gay marriage.

One could say from a sociological point of view that a justice’s personal or political values dictate court decisions, not the written words of the U.S. Constitution. However, all Supreme Court justices (liberal or conservative) follow their own way when doing a legal analysis of a case. While analytical steps (gathering facts, reviewing case law and statutory law, etc.) may be the same, the legal analysis always follows a specific theory of Constitutional interpretation. It is Constitutional Interpretation theories that really matter when trying to understand the thought processes of a U.S. Supreme Court Justice. Because of this approach a Justice can see the same words in the Constitution, yet derive a different meaning and conclusion based on which category of constitutional interpretation they personally subscribe to. So what are these theories?

The Main Categories of Constitutional Interpretation

The Constitution emerged after several months of debate in 1787, during which the Founders sought to “form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty.” Several centuries have passed since the Constitution was formed, and in the intervening time, multiple questions and debates have arisen over its meaning and interpretation.

There are two main categories of constitutional interpretation: Originalism and Non-Originalism. These two categories are admittedly broad. But in general terms, the first seeks to interpret the Constitution by looking closely at the text, the influencing documents and the historical context in which it was written. The second looks at the Constitution as a living document the interpretation of which needs to take into account changes in social norms, economic and political circumstances.

According to one proponent, Originalism “means that the constant touchstone of constitutional law should be the purposes and values of those who had the authority to make the Constitution—not of those who are charged with governing under it and abiding by it.” An oft-cited variation of Originalism is Strict Constructionism, which focuses interpretation on the technical, exact meaning of the words in the Constitution. Past and present examples of justices who hold the Originalism viewpoint include Justice Hugo Black, Justice Antonin Scalia, Justice Clarence Thomas, and Judge Robert Bork. The later Judge Bork was a U.S. Court of Appeals for the District of Columbia Circuit judge and a Reagan conservative nomination to the highest court. However, he failed to achieve confirmation.

Non-Originalism, on the other hand, is sometimes referred to as Loose Constructionism or Pragmatism, and its proponents often support the idea of a “‘living constitution’ … [which] evolves, changes over time, and adapts to new circumstances.” Past and present examples of justices who hold this view include Justice Harry Blackmun, Justice William Brennan, Justice William O. Douglas, and Judge Richard Posner.

The first debates over proper constitutional interpretation arose among the Founders themselves. In 1788, while the Constitution was awaiting ratification, Alexander Hamilton stated that the interpretation of the Constitution was to be left in the hands of the courts.

Nearly 30 years later, James Madison noted the bias that was possible in interpreting the Constitution, both for those present during its formation, like himself, and for those removed from the process, but eager “to find in its text an authority for a particular measure of great apparent Utility.” Finally, Thomas Jefferson weighed in on constitutional interpretation methods with the following statement:

“On every question of construction, carry ourselves back to the time when the constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”

In the years following the Founding generation, the courts and other constitutional scholars continued to approach constitutional interpretation with caution. For example, Joseph Story’s Commentaries on the Constitution suggested that Americans interpret the Constitution in a straightforward, rational manner while cautiously appealing to the Founders’ contemporary context in matters lacking clarity. Additionally, court cases such as Pollack v. Farmers’ Loan and Trust Co. (1895), South Carolina v. United States (1905), and Ex Parte Grossman (1925) all cited the need to look into the historical circumstances surrounding the Founding Fathers in order to make accurate judgments.

However, as the 20th century advanced, the idea that the Constitution needed to be interpreted in light of the nation’s changing times and circumstances began to take precedence in the Court system. Chief Justice Earl Warren put this concept into words in 1958 when he stated, “The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Justice William Brennan championed this idea as well by declaring that it was “arrogance” to say that modern justices could know what the Founders intended, therefore the Constitution should be interpreted according to the changing ideas of different generations. In the eyes of current Supreme Court Justice Elena Kagan, this type of constitutional interpretation demanded that “the courts show a special solicitude for the despised and disadvantaged.”

Due to these developments in the judicial review process, the types of judges nominated to the court system are increasingly scrutinized concerning their constitutional viewpoints. Unfortunately, Originalism vs. Non-Originalism constitutional interpretation has come to be viewed largely along ideological lines, with Conservatives generally advocating for an Originalism position and Progressives advocating for a Non-Originalism position.

The material in this topic traces the historical methods of constitutional interpretation from the era of the Founding to the present. It examines the various forms of constitutional interpretation today while also presenting the arguments for and against each. How the public views these two ways of interpreting the Constitution will be presented in the next section.

Americans Divided on How the Supreme Court Should Interpret the Constitution

By Jocelyn Kiley

Jocelyn Kiley is associate director of research at the Pew Research Center, where she primarily works on U.S. public opinion about politics.

 

“Democrats and Republicans remain deeply divided about how the U.S. Supreme Court should interpret the Constitution, according to a new analysis by the Pew Research Center. And there are many differences across demographic groups – especially when it comes to religious affiliation.[1]

About half of the public (49%) say the decisions of the Supreme Court should be based on its understanding of what the Constitution “means in current times,” while roughly as many (46%) say decisions should be based on what the Constitution “meant as it was originally written.”[2]

But Republicans—by more than two-to-one (69% to 29%)—say the justices should base their rulings on the Constitution’s original meaning rather than on what it means in current times. Democratic opinion goes the other way: 70% say the court should base its rulings on an understanding of the Constitution’s meaning in current times (26% say rulings should be based on the document’s original meaning).[3]

These differing views of how the court should interpret the Constitution may account for some of the partisan differences in opinions of the court itself seen in the Pew Research Center’s latest survey.[4]

And these opposing views on constitutional interpretation are even starker along ideological lines. Fully 92% of those who are consistently conservative on a 10-question scale of political values, along with 72% of those who are mostly conservative on this scale, say interpretation should be based on original intent. By contrast, 83% of those with consistently liberal political values, and 70% of those who are mostly liberal, say the justices’ rulings should be based on the Constitution’s meaning in current times (the items used in the 10-item scale can be found in Pew Research’s report on Political Polarization in the American Public).[5]

To some extent, the ideological split in the public’s views mirror the ideological divide of the court itself. The originalism position is most closely associated with Justice Scalia, one of the court’s conservative justices. Justice Scalia has often publicly stated his view that interpretation should be based on the document as originally written. Though there are differences among the conservative justices on this question, the view that the current meaning should be taken into account in constitutional interpretation is more closely associated with the positions of the court’s liberal justices.[6]

Among the public, there are also sizeable differences in views of constitutional interpretation, not just by ideology but also by education, race, age and religion.[7]

For example, while 62% of those with post-graduate degrees say constitutional interpretation should be based on the document’s meaning in current times, those who have not graduated from college are more divided on the question (46% current meaning, 49% as originally written). And while about six-in-ten African Americans and Hispanics (61% each) say the  Court should base its interpretation of the Constitution on the document’s meaning in current times, only 44% of whites say so.[8]

But some of the starkest divides are along religious lines. Nearly three-quarters of white evangelical Protestants (73%) say the justices should base their rulings on the original meaning of the Constitution. By contrast, just 44% of white mainline Protestants, 42% of Catholics and 37% of Black Protestants share this view. By nearly two-to-one (63% to 34%), more of those who are unaffiliated with a religious tradition say justices should rule based on the Constitution’s meaning in current times. And — in contrast to other demographic differences — religious differences on this question remain significant even when partisanship and ideology are taken into account.[9]

The Problem with saying or believing the U.S. Constitution’s interpretation on “current times” is a choice on a questionnaire is that term was not defined in any way.

A closer inspection of this issue is provided following the next article on the intent of the framers of the United States Constitution. It is instrumental to regard what the original framers of the U.S. Constitution had intended.

This is an important consideration since it’s obvious that the simple original words and language of the U.S. Constitution were denied or ignored by conservative judges when considering the Patriot Act. With regard to gay marriage rights, current conservative judges may be disingenuous when they totally disregarded the original language and words used by the framers of the United States Constitution in addition to ignoring the concepts underlying modern day interpretation of the United States Constitution.

In addition, besides the words of the Constitution, it is vitally important to understand what the framers of the U.S. Constitution had really intended the Constitution to be about. We are left with their words, but it must be combined with what we know to be their intent.

This may become clearer as you read the next article on the Framer’s Constitution. Remember, one of the original Founder’s principles was “Equal Justice under the Law.” Their intent seems pretty clear. Such a principle was to apply to every citizen since its first words are “We the People.” The more I think about the U.S. Constitution the more I realize what an extraordinary document it is and how extraordinarily brilliant our Founders were.

What Was the Intent of the Framers of the United States Constitution?

The Framers’ Constitution

George Stone & William Marshall

“The Framers of the American Constitution were visionaries. They designed our Constitution to endure. They sought not only to address the specific challenges facing the nation during their lifetimes, but to establish the foundational principles that would sustain and guide the new nation into an uncertain future.[10]

The text of the Constitution reflects this vision. It defines our most fundamental freedoms in general terms: “freedom of speech,” “due process of law,” “free exercise” of religion, “equal protection of the laws,” “cruel and unusual punishment.” The Constitution sets forth governmental powers in similarly general terms: Congress may regulate “commerce… among the several states;” the president will “take care that the laws be faithfully executed,” and the courts are authorized to decide “cases” and “controversies.”[11]

These phrases are not self-defining. The Framers understood that they were entrusting to future generations the responsibility to draw upon their intelligence, judgment, and experience to give concrete meaning to these broad principles over time. As Chief Justice John Marshall observed almost two centuries ago, “we must never forget it is a Constitution we are expounding…intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.”[12]

Marshall’s interpretative understanding reflects an approach that is true to what we might call “The Framers’ Constitution.” It recognizes that the Constitution sets forth broad principles and that the central challenge of constitutional interpretation is to define and then give life and substance to those principles in an ever-changing society. The principles enshrined in the Constitution do not change over time. But the application of those principles must evolve as society changes and as experience informs our understanding.[13]

American constitutional law has long followed the path set by Chief Justice Marshall. As technological means of surveillance became more sophisticated, for example, the meaning of “search” in the Fourth Amendment came to include invasions of privacy that do not involve a physical trespass.

The provision granting Congress the power to maintain the nation’s “land and naval Forces” was eventually seen as authorizing an air force. The guarantee of “equal protection of the laws” in the Fourteenth Amendment was understood in later decades as prohibiting discrimination against not only African Americans but women, and gays and lesbians as well. “Commerce…among the several states” came to be seen differently as the nation’s economy became more complex and integrated across state lines.

The concept of “liberty” was recognized as encompassing not only freedom from physical restraint, but also freedom from undue government intrusion into such fundamental personal decisions as whether to bear or beget a child or how to raise and educate one’s children.[14]

But how should we give concrete meaning to the open-textured provisions of the Constitution? The best answer, grounded in the vision of the Framers and in the wisdom of John Marshall, has a long and honorable tradition in American constitutional law. This answer has two elements. First, at the very core of the Framers’ Constitution is the recognition that, in a self-governing society, courts must generally defer to the preferences of the majority[ We now have a majority—60%— of citizens approving of gay marriage]. Although courts may always review governmental action to guard against the arbitrary or unreasonable, the starting point must be a presumption of judicial modesty. This is an essential tenet of any theory of principled constitutionalism.[15]

Second, respect for the Framers’ Constitution requires us to recognize that although the Framers thought majority rule to be the best system of government, they knew it to be imperfect. They understood that political majorities may be tempted to enact laws that entrench their own authority; that in times of crisis people may panic and too readily sacrifice both fundamental freedoms and structural limitations; and that prejudice, hostility, and intolerance may at times lead governing majorities to give short shrift to the legitimate needs and interests of political, religious, racial, and other minorities.[16]

The Framers intended courts to play a central role in addressing these concerns. When proponents of the original Constitution argued in 1789 that a bill of rights would be pointless because political majorities would run roughshod over its guarantees, Thomas Jefferson responded that this argument ignored “the legal check” that could be exercised by the judiciary.

When James Madison faced similar concerns when he introduced the Bill of Rights in the first Congress, he maintained that “independent tribunals of justice will consider themselves…the guardians of those rights [and]…will be naturally led to resist every encroachment” upon them. And in Federalist 78, Alexander Hamilton stated that constitutional protections and limitations could “be preserved in practice no other way than through the medium of courts of justice,” which must “guard the Constitution and the rights of individuals from the effects of those ill humors which…sometimes disseminate among the people themselves.”[17]

This understanding of the Framers’ Constitution found expression in the modern era in a series of Supreme Court opinions in the 1930s and ’40s. In the Court’s famous footnote four in Carolene Products (1938), for example, the Court suggested that there are some circumstances in which there may be “narrower scope” for the usual “presumption of constitutionality.” Specifically, the Court noted that “more exacting judicial scrutiny” may be appropriate when legislation “restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation” and when laws disadvantage groups like “religious” or “racial minorities,” because “prejudice” against such groups “tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect” them.

Put simply, the majority recognized in Carolene Products that courts should not be so quick to defer to the outcome of the political process when there is good reason to believe that that process itself may have been tainted. The Court added another element to this understanding in Skinner v. Oklahoma (1942), in which the Court invalidated a law authorizing compelled sterilization. Noting that the right to procreate is one of “the basic civil rights of man,” the Court held that government action that substantially restricts the exercise of such a right must be subjected to heightened scrutiny to ensure that the limitation on the right is truly necessary.[18]

Following this approach, the Supreme Court has properly departed from the presumption of judicial restraint when governing majorities disadvantage historically vulnerable groups (such as African Americans, ethnic minorities, political dissidents, religious dissenters, women, and persons accused of crime), as when they use their authority to stifle critics, entrench their own political power, or undermine the constitutional structure of checks and balances; and when they substantially restrict the exercise of constitutionally protected rights.

In such circumstances it is necessary and proper for courts—Madison’s “independent tribunals of justice”—to exercise a “more exacting judicial scrutiny” in order to protect our most fundamental freedoms and guard against those malfunctions of majority governance that most concerned the Framers. This, too, is an essential tenet of principled constitutionalism.[19]

Invoking this understanding of judicial responsibility, the Supreme Court has issued a series of landmark decisions that faithfully interpret and apply the Framers’ Constitution. These decisions ended de jure racial segregation, recognized the principle of “one person, one vote,” forbade government suppression of political dissenters, established an effective right to counsel for persons accused of crime, struck down government discrimination against women, limited the authority of government to interfere with women’s reproductive choices, and upheld the right of “enemy combatants” to due process of law, to cite just a few examples. These decisions animate the most fundamental aspirations of our Constitution in circumstances in which judicial intervention is both necessary and proper.[20]

     For the past half-century, however, conservatives have argued that the Supreme Court has gone too far in its efforts to preserve the vitality of self-governance and protect the rights of those most in need of judicial attention. In the 1960s, they condemned what they derided as “judicial activism” and demanded the appointment of judges committed to a more capacious form of judicial restraint.

     But although judicial restraint in appropriate circumstances is essential to principled constitutionalism, its sweeping, reflexive invocation by conservatives would abdicate a fundamental responsibility that the Framers entrusted to the judiciary and would therefore undermine a critical element of the American constitutional system. It is no more appropriate for judges to refuse to enforce the Constitution against intolerant or overreaching majorities than it is for the president to refuse to defend the nation against enemy invasion.[21]

Perhaps recognizing that a theory of unbounded judicial restraint is constitutionally irresponsible, political conservatives next came up with the theory of “originalism.” First popularized by Robert Bork, Edwin Meese, and Antonin Scalia in the 1980s, originalism presumes that courts should exercise judicial restraint unless the “original meaning” of the text clearly mandates a more activist approach. Under this theory, for example, it is appropriate for courts to invoke the Equal Protection Clause to invalidate laws that deny African Americans the right to serve on juries, but not to invalidate laws that deny women that same right, because that was not the “original meaning” of the clause.[22]

Originalism, however, is fundamentally flawed. First, because those who enacted the broad foundational provisions of our Constitution often did not have any precise and agreed-upon understanding of the specific meaning of “freedom of speech” or “due process of law” or “regulate Commerce…among the several States” or “privileges or immunities” or “equal protection of the laws,” it is exceedingly difficult to know with any certainty what they did or did not think about concrete constitutional issues.

As a consequence, judges purporting to engage in originalist analysis often project onto the Framers their own personal and political preferences. The result is an unprincipled and often patently disingenuous jurisprudence. There is no evidence for the claims advanced by originalists, for example, that the original meaning of the Equal Protection Clause prohibited affirmative action or that the original meaning of the First Amendment included the notion that corporations (which were both strongly regulated and highly distrusted at the time) had a constitutional right to spend unlimited capital to influence political elections. Both of these claims, however, are central to today’s conservative legal agenda.[23]

The second problem with originalism is even more disqualifying, for it reveals the theory to be internally incoherent. Originalism asserts that those who crafted and ratified our Constitution intended the meaning and effect of their handiwork to be limited to the specific understandings of their time. But this view erroneously attributes to the Framers a narrow-mindedness and shortsightedness that belies their true spirit.

As Justice Louis Brandeis observed more than 80 years ago, the Framers believed “courage to be the secret of liberty.” They were not timid men. [24]Moreover, originalism ignores that those who framed our Constitution were steeped in a common-law tradition that presumed that just as reason, observation, and experience permit us to gain greater insight over time into questions of biology, physics, economics, and human nature, so too would they enable us to learn more over time about the content and meaning of the principles they enshrined in our Constitution.

Indeed, the notion that any particular moment’s understanding of the Constitution’s provisions should be locked into place and taken as constitutionally definitive would have seemed completely wrong-headed to the Framers, who held a much bolder and more confident conception of their own achievements and aspirations.[25]

For these reasons, the conservative doctrine of “originalism” has been largely discredited as a serious method of constitutional interpretation. This is not to say, however, that the views of the Framers are irrelevant. To the contrary, their values, concerns, and purposes, as reflected in the text of the Constitution, must inform and guide the process of constitutional interpretation, but in a principled and realistic manner. They must be considered as the Framers themselves understood them—as a set of general principles and aspirations, rather than as a collection of specific and shortsighted “rules.” To be true to the Framers’ Constitution, we must strive to implement faithfully the Framers’ often farsighted goals in an ever-changing society. That is central to any theory of principled constitutionalism.[26]

We have now entered a new and even more troubling phase of conservative constitutional jurisprudence. It is best characterized as “conservative activism.”

Justices who readily dismiss constitutional claims by women, political dissenters, and racial, ethnic, and religious minorities, but at the same time aggressively strike down affirmative action programs, restrictions on corporate political expenditures, regulations of commercial advertising, federal civil rights laws prohibiting age discrimination and domestic violence, and the laws of the state of Florida in the 2000 presidential election, are unmistakably using the power of judicial review in a highly selective and politicized manner that cannot credibly be justified by any principled theory of constitutional interpretation.

Despite all of the conservative rhetoric about originalism, “strict construction,” “judicial restraint,” “applying rather than making the law,” and “calling balls and strikes,” this pattern of decisions raises grave questions about the considerations that actually drive the jurisprudence of our conservative justices.[27]

Constitutional interpretation is not a mechanical enterprise. It requires judges to exercise judgment. It calls upon them to consider text, history, precedent, values, changing social, economic, technological, and cultural conditions, and the practical realities of the times. It requires restraint, wisdom, empathy, intelligence, and courage. Above all, it requires recognition of the judiciary’s unique strengths and weaknesses, a proper appreciation of the reasons for judicial review, and a respectful understanding of our nation’s most fundamental constitutional aspirations and how we hope to achieve them.[28]

It is time for a new era of principled constitutionalism. It is time to return to the Framers’ Constitution.

Final Comments

In this straight author’s opinion, one cannot achieve meaningfulness in viewing the Constitution through either the prism or lens of “current times” or just the words left by the founders in the original document. Meaningfulness must be based on both. However, in addition, the general principles outlined by the original framer’s Constitution, should give clarity as to the Framer’s intent i.e., what they viewed as important.

While not specifically mentioning same-sex marriage in the text of the Constitution, its general principles provide for such a decision on gay marriage in the modern era by modern day Justices.

What I’m saying is that three things mattered in the decision on gay marriage two weeks ago; (1) a modern day viewpoint, (2) the actual original words of the Constitution itself, and (3) the intent of the Framers of the Constitution as reflected by their guiding principles.

A good constitutional legal analysis will be based on all three ways of interpretation. Another way of looking at this is to analytically embrace the concept and importance of Principled Constitutionalism. Why? It’s because the guiding principles outlined by the Framers gives real clarity in decision-making. Clarity is not achieved by politically based value judgments.

As an aside, people who oppose gay marriage based on religious beliefs are assuming that beliefs trump conduct. This is simply not the case. People have an absolute right to believe anything they want. They also have an absolute right to be an unmitigated bigoted buffoon filled with prejudice. Any and all beliefs, after all, are simply “a dime a dozen.” When one crosses the thin line between beliefs and actual behavior, our legal system has something to say about that.

While religious beliefs are protected under the U.S. Constitution, discriminatory behavior based on those beliefs is not. That’s called discrimination under the law, and is prohibited by the equal protection clauses under the 14th Amendment.

This Blog has been a brief overview of Principled Constitutionalism, Constitutional Theories and Interpretation, and Gay Marriage. Those interested in a more thorough look at Justice Kennedy’s legal reasoning should visit the following link:

http://www.msnbc.com/msnbc/seema-iyer-breaks-down-obergefell-v-hodges

As George Stone & William Marshall wrote in their article above—the theory of Originalism as espoused by conservatives on the U.S. Supreme Court is highly flawed. But we must remember this: It’s okay to be an anachronistic conservative in this day and age. After all—nobody is perfect!


 

 

[1] http://www.pewresearch.org/fact-tank/2014/07/31/americans-divided-on-how-the-supreme-court-should-interpret-the-constitution/

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] http://www.huffingtonpost.com/geoffrey-r-stone/conservatives-constitution-_b_959277.html

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Ibid.

[25] Ibid.

[26] Ibid.

[27] Ibid.

[28] Ibid.

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Why California Will be a Significant State in Banning Sharia Law

 

Background

California’s significance lies in its size of its population (38.8 million as of 2014). California is the largest state in the union as to its population. Otherwise, Alaska claims the trophy for land mass, with California in third place.).

California is the most populous sub-national entity in North America. If it were an independent country, California would rank 34th in population in the world. It has a larger population than all of Canada and Australia. Its population is one third larger than that of the next largest state, Texas. California surpassed New York to become the most populous state in 1962.

No single racial or ethnic group forms a majority of California’s population, making the state a minority-majority state. Non-Hispanic whites make up 40.1% of the population. Spanish is the state’s second most spoken language. Areas with especially large Spanish speaking populations include Los Angeles metropolitan area, the California-Mexico border counties of San Diego and Imperial, and the San Joaquin Valley.  Nearly 43% of California residents speak a language other than English, a proportion far higher than any other state.

 

Muslim Population in the United States and California

     There are an estimated 5 million Muslims in the United States. Twenty percent or 1,000,000 Muslims live in California.

 

     Geographical Distribution:  The table below represents a breakdown by states of the largest Muslim communities in the United States. It shows that there are an estimated 3.3.  Million Muslims in these states. The figure represents 62 percent of the estimated 5 million Muslims living in the United States. 

Muslim State Population Table 

  Muslim Population   (1,000)  Percentage Total Muslim Population  Percent of Total State Population 
California 1,000 20.0 3.4
New York 800 16.0 4.7
Illinois 420 8.4 3.6
New Jersey 200 4.0 2.5
Indiana 180 3.6 3.2
Michigan 170 3.4 1.8
Virginia 150 3.0 2.4
Texas 140 2.8 0.7
Ohio 130 2.6 1.2
Maryland 70 1.4 1.4

* Estimates under column 2 have been rounded to the nearest even number.

The list below shows the number of facilities used by Muslims for religious activities and community affairs:

Mosques/Islamic Centers 843
Islamic Schools 165
Associations 426
Publications   89

There are 165 Islamic Schools in the United States, of which 92 are full time. Figures here for Masjids/Islamic Centers are based on directory listings.

Note: The exact number of businesses owned and operated by Muslims is unavailable, but they are estimated in the thousands. These preliminary findings represent data collected during 1986-1992.

Controversy

Some Muslim Americans have been criticized because of perceived conflicts between their religious beliefs and mainstream American value systems. Muslim cab drivers in Minneapolis, Minnesota have been criticized for refusing passengers for carrying alcoholic beverages or dogs. The Minneapolis –Saint Paul International Airport authority has threatened to revoke the operating authority of any driver caught discriminating in this manner. There are reported incidents in which Muslim cashiers have refused to sell pork products to their clientele.

Based on data from a 2006 poll by the Pew Research Center, their graph records the distribution of feelings of U.S. Muslims on the topic of suicide bombings, separated by age group.

Terrorism that involved Muslim perpetrators began in the United States with the 1993 shootings at CIA Headquarters in Langley, Virginia, followed by the 1993 World Trade Center bombing in New York City. The latest was the April 2013 Boston Marathon bombings in Massachusetts. After the September 11 attacks and the start of the Afghanistan war in 2001, there was concern about the potential radicalization of American Muslims. A 2007 Pew poll reported that 15% of American Muslims under the age of 30 supported suicide bombings against civilian targets in at least some circumstances, on the other hand 11% said it could be “rarely justified.”

Among those over the age of 30, just 6% expressed their support for the same. (9% of Muslims over 30 and 5% under 30 chose not to answer). A March 2010 Bipartisan Policy Center paper points out an increasing number of American Muslims are playing high-level operational roles in al-Qaeda and aligned groups, as well as a larger numbers of American Muslims who are attaching themselves to these groups.

Between 2001 and the end of 2009, there were 46 publicly reported incidents of “domestic radicalization and recruitment to jihadist terrorism” that involved at least 125 people between 2001 and the end of 2009. There had been an average of six cases per year since 2001, but that rose to 13 in 2009.

While the seeming increase in cases may be alarming, half “involve single individuals, while the rest represent ‘tiny conspiracies,’ ” according to Congressional testimony.

Furthermore, a 2012 study by the University of North Carolina indicated that the yearly number of cases of alleged plots by Muslim-Americans appears to be declining. The total of 20 indictments for terrorism in 2011 is down from 26 in 2010 and 47 in 2009 (the total since 9/11 is 193). The number of Muslim-Americans indicted for support of terrorism also fell, from 27 individuals in 2010 to just eight in 2011 (the total since 9/11 stands at 462). Also in apparent decline is the number of actual attacks: Of the 20 suspects indicted for terrorism, only one was charged with carrying out a terrorist act. This number is down from the six individuals charged with attacks in 2010. The study’s author concludes that the “limited scale of Muslim-American terrorism in 2011 runs counter to the fears that many Americans shared in the days and months after 9/11, that domestic Muslim-American terrorism would escalate.”

Muslim Americans are significantly represented among those who tip authorities off to alleged plots having given 52 of the 140 documented tips regarding individuals involved in violent terrorist plots since 9/11.

Extremism in the United States

At least one American not of recent immigrant background, John Walker Lindh, has been imprisoned, convicted on charges of working with the Taliban and carrying weapons against American soldiers. He had converted to Islam while in the United States, moved to Yemen to study Arabic, and then went to Pakistan, where he was recruited by the Taliban.

Another American that was not of recent immigrant background, Jose Padilla (prisoner), of Puerto Rican decent and the first Hispanic-American to be imprisoned and convicted on suspicion of plotting a radiological bomb (“dirty bomb”) attack.

He was detained as a material witness until June 9, 2002, when President George W. Bush designated him an enemy combatant and, arguing that he was not entitled to trial in civilian courts, had him transferred to a military prison. He had converted to Islam while serving his last jail sentence in prison, and went to Pakistan where he was recruited into Al-Qaeda.

Islamophobia

     A 2011 Gallup poll report has stated that there has been an increase in Islamophobia over the past decade and defined it as “An exaggerated fear, hatred, and hostility toward Islam and Muslims that is perpetuated by negative stereotypes resulting in bias, discrimination, and the marginalization and exclusion of Muslims from social, political, and civic life.” A 2014 Pew poll found that Muslims were the most disliked religious group in the United States with an average 40% cold rating, which is lower than the 41% cold rating received by atheists.

Public institutions in the U.S. have also drawn fire for accommodating Islam at the expense of taxpayers. The University of Michigan-Dearborn and a public college in Minnesota have been criticized for accommodating Islamic prayer rituals by constructing footbaths for Muslim students using tax-payers’ money.

Critics claim this special accommodation, which is made only to satisfy Muslims’ needs, is a violation of Constitutional provisions separating church and state. Along the same constitutional lines, a San Diego public elementary school is being criticized for making special accommodations specifically for American Muslims by adding Arabic to its curriculum and giving breaks for Muslim prayers. Since these exceptions have not been made for any religious group in the past, some critics see this as an endorsement of Islam.

The first American Muslim Congressman, Keith Ellison, created controversy when he compared President George W. Bush’s actions after the September 11, 2001 attacks to Adolf Hitler’s actions after the Nazi-sparked Reichstag fire, saying that Bush was exploiting the aftermath of 9/11 for political gain, as Hitler had exploited the Reichstag fire to suspend constitutional liberties.

The United States Holocaust Memorial Museum and the Anti-Defamation League condemned Ellison’s remarks. The congressman later retracted the statement, saying that it was “inappropriate” for him to have made the comparison.

At Columbus Manor School, a suburban Chicago elementary school with a student body nearly half Muslim Arab Americans, school board officials have considered eliminating holiday celebrations after Muslim parents complained that their culture’s holidays were not included.

Local parent Elizabeth Zahedan said broader inclusion, not elimination, was the group’s goal.” I only wanted them modified to represent everyone,” the Chicago Sun-Times quoted her as saying. “Now the kids are not being educated about other people.” However, the district’s superintendent, Tom Smyth, said too much school time was being taken to celebrate holidays already, and he sent a directive to his principals requesting that they “tone down” activities unrelated to the curriculum, such as holiday parties.

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     Totalitarian regimes based on a religion carry no more weight than totalitarian regimes whose primary motives are based on greed for resources such as land, oil, or raw power and control over others. Sometimes such regimes are one and the same.

In a civilized world people’s individuality is put first in harmony with the community in which they live. People are free to pursue their own individual dreams and live out their lives to the best of their ability according to common sense and the rule of law, and supported by the Universal Declaration of Human Rights espoused in 1948 by the United Nations.

In the weeks and months ahead, a five-part series will be posted that delves into the psychology and sociology of Religious Fanaticism. In part five of the series I will present the seminal work of the late sociologist/philosopher/longshoreman, Eric Hoffer.

I leave you now with one of his many quotes about—The True Believer.

“Faith in a holy cause is to a considerable extent a substitute for the lost faith in ourselves.” ― Eric Hoffer, The True Believer: Thoughts on the Nature of Mass Movements

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