Monday, July 19, 2010

De-Citizenship Trials in Practice: Tolerating Fred Phelps

Vox Populi, a regular commentator on this blog, has just started a blog of his own where I have been going back and forth with him on the issue of tolerating Muslims. As I have argued here in the past, in addition to the usual restrictions on free speech such as the inability to "shout fire," incite to violence or be a public nuisance, one is also limited by inability to make statements, or even to hold beliefs, that challenge the legitimacy of the system. This disqualifies the beliefs of most extremists, whether from the left or the right, secular or religious, Christian, Muslim or Jewish. Such people would be outside the protection of the First Amendment and could be targeted by the government. In fact it may be necessary for the government to not allow such people the protection of the First Amendment.

To be clear, this does not limit normative disagreement, even very strong disagreement. I am allowed to believe that President Barack Obama's health care plan and stimulus package are mistakes that will bring disaster to this country and even cost lives. I can believe that both Christianity and Islam are not "True" religions and do not help their believers "get right" with God. I can believe these things as long as I accept that both Obama and my Christian and Muslims neighbors are basically decent people and patriotic citizens, who came by their mistaken beliefs honestly. This allows me to accept Obama as my legitimate president, as called for by the Constitution, and Christians and Muslims as fellow citizens.

What I would like to discuss here are the practical matters involved. How would we, in practice, go about stripping such people of their citizenship and avoid turning this into a tool of legitimate free speech suppression. Take the example of Fred Phelps, the minister of the infamous Westboro Baptist Church. Phelps believes that "God hates fags" and that American tolerance of homosexuality has caused the death of our soldiers in Iraq. To make his point, he and his followers have even taken to picketing the funerals of American soldiers.

To put this in context, this is the sort of anti-gay hate speech that even Ann Coulter denounces.

I do not care if Phelps is "intolerant" or engaging in "hate" speech. What is of concern is that fact that Phelps not only does not agree with American policy, but no longer accepts the legitimacy of the United State government. For example the Hebrew prophets, whom I presume Phelps looks to as his models, could denounce the individual sins of the people of Israel without ever questioning that they were people of God. In fact it was precisely because they were the people of God that the children of Israel had need of being rebuked. Elijah may have denounced King Ahab as an idolater and murder, whom God would punish, but he never challenged the fact that Ahab was a legitimate king. Phelps makes no such distinction. His world is one in which his small group are righteous and everyone else are wicked beyond redemption.

I see nothing objectionable with having the government sue Phelps, drag him into court and put to him some very simple questions: considering what he believes about the United States, does he consider himself an American citizen bound by American law, and if so how does he justify, not the belief in the iniquity of the United States, but his part in it as an American citizen? This exercise would be worth it just to make Phelps squirm, trying to answer these questions with a straight face. He would not have to convince any judge or jury to sympathize with his world view or even agree with how he rectifies this dilemma. All we are asking him to do is to convince a judge or jury that he believes his own answers and that, in his own mind, he is not trying to put one over them, secretly laughing at their gullibility. Failure to do this would result in his being stripped of his citizenship. He would still be allowed to live in this country; he would not be put in jail or even fined. All this would mean is that he would lose his ability to vote, access to government services and the ability to take part in public discourse.

It is important to understand that we would not be coming after Phelps for any of his beliefs per se. Our only objection to him is his breach of contract. In civil law if one signed a contract only to find out that the other person did not believe himself bound by this contract, one would be justified in suing for breach of contract and demand to be released by the court from this contract. In this case it would be irrelevant that the contract has yet to actually be broken. It is enough that the contract was not entered in good faith. Government is a contract signed between government and citizens. Before we can begin to talk about the parties fulfilling their parts of the contract (like the government protecting the free speech of citizens) all parties need to be acting in good faith and accept the legitimacy of the contract. If one of the parties, say Citizen Fred Phelps, is not acting in good faith then the contract is off. I am not about to lift a finger to protect his First Amendment rights unless I am convinced that he is willing to do the same for me. The Constitution is not a suicide pact.

The course of action I am outlying is not one of "I will only tolerate tolerant people." Such notions of tolerance are meaningless and can be dismissed as cover only people one agrees with as all beliefs imply some form of intolerance. I would be perfectly willing to accept Phelps as a citizen despite him being an "intolerant" person who believes in making homosexuality a crime. He can even believe that we are a sinful nation for tolerating homosexuality and that God is going to punish us as long as he believed that the United States had the "right" to make laws tolerating homosexuality and the United States government was still rightfully his government. To convince me that he holds this I would have to see him saying things like "Oh Lord! As Isaiah said: 'behold I am a man of unclean lips dwelling amongst a people of unclean lips.' This is a nation of homosexual tolerating sinners, but I pray that you forgive them for they have come to these sins in good faith seeking to follow a just Constitution. These are my people and as Moses prayed if the burden of their sin is to heavy 'remove me from your book' and let me be punished with them." Phelps would still be a bigot, but I could still accept him as a fellow citizen. Whatever else he might believe, I would know that he was on my side as an American.


redsneakz said...

I came by your blog via Chaviva.

A question comes to mind, naturally. The legal definition of treason is that a person must actively wage war against the United States, or adhere to their enemies, giving them aid and comfort. Treason is the extreme definition of betrayal of the state, and by extension, society.

But even in this extreme case, even though certain rights and privileges that attach to a person are removed, his citizenship is not revoked (naturally, of course, death is considered the ultimate revocation, but let's not dwell on that).

If this is the case, how can you argue that as a matter of law, it would be right to revoke his citizenship?

Izgad said...

There is a concept in the military of stripping people of their status as soldiers. When military tribunal sentence soldiers to death they also strip them of their rank before executing them. You may ask what the point is; it is purely symbolic to show that we even reject the previous relationship since he has rejected us.

As I point out in an earlier post (

“If someone rapes and murders a child, he is still an American citizen and has rights. He cannot be tortured and has the right to a fair trial in front of a jury of his peers. Even if we apply the death penalty, up until the moment the State executes him, he is an American citizen and has the right to a humane death. The reason for this is that throughout this entire process this person has not acted to reject the authority of the State.”

We are not in the habit of officially stripping people of their citizenship. We de facto do such things with open and active white supremacists. If you are a member of Aryan Nations we will not let you join the military, or anything else involving society. I say let us be honest and make it official that these people are not and cannot be citizens. They are threats, whom we allow to live on compounds in Idaho and if they do anything suspicious we will send in the Feds and have another Wacko. Once we have this concept officially on the books it makes sense to apply to other groups which reject the essential contract of citizenship as it exists today, particularly the notion of State authority.