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Friday, August 27, 2010
The Ground Zero Mosque, the Uproar, and the Uproar over the Uproar

Surely, if a clear majority of Americans oppose the building of a new, prominent mosque at or near Ground Zero in Manhattan, one level or another of our government "of the people, by the people, and for the people" could stop it, right? Well, not exactly . . . NEW: Listen to an audio podcast of this post.


You've noticed the nationwide uproar over plans to build a large mosque and Muslim cultural center near "Ground Zero" in Manhattan. The outcry is understandable; "Ground Zero" -- not that you've forgotten -- is where ten Islamofascists used two wide-body airliners to murder thousands of innocent people, including Muslims, on September 11, 2001. In fact, depending on how you look at it, the proposed building site may not be two short city blocks from Ground Zero; it may be part of Ground Zero, because one plane's landing gear hit and damaged the building which still stands there.

Then there's the uproar over the uproar. Take your pick: Is it un-American to allow the mosque to be built there? Is it un-American to oppose it? Is it un-American to call large blocs of fellow Americans "un-American"?

Efforts are under way to persuade the leaders of the mosque project to find a site further from Ground Zero. Alternate locations have been suggested. Meanwhile, union workers are refusing to work on the project . Whether any such efforts will succeed remains to be seen, but they certainly don't have to. All the necessary permits and approvals are already granted, apparently, and property rights, the Bill of Rights, and  the Hatch Act are lined up in favor of the mosque.

Some, perhaps not you, are asking, What happened to government "of the people, by the people, and for the people"? How can this project proceed against the will of a majority of Americans? Don't we live in a democracy? The answers are not as well-known as we might hope.

No, We Don't

We do not live in a democracy. People who understand government, including our founders, prefer to avoid pure democracy. It's capricious and tyrannical.

We live in a constitutional, democratic republic. We elect our representatives democratically, to be sure. But then, with some exceptions at the state and local levels, they, not we, vote on legislation. We are free to replace them at fixed intervals, if we choose, but we cannot force them to vote one way or another.

There's more. There's a constitution, which protects the rights of individuals against not only the government, but also against the popular will.

At issue here is the most fundamental of those rights, religious freedom. The other First Amendment rights mean little without it; freedoms of speech, press, and peacable assembly are hollow if they exclude religious activity.

Once it's established that the proposed building in Manhattan complies with zoning laws and other local regulations, as it apparently does, there's only one question left, where possible government intervention is concerned: Are the purpose and the likely uses of the mosque essentially religious?

If so, our government is helpless to intervene, no matter how many are offended. There is no constitutional protection against having your feelings hurt -- or even against having your deepest sensibilities profoundly insulted. Maybe Charles Krauthammer is right to call the plan sacrilege, but the First Amendment protects sacrilege. Maybe it is deliberate provocation, as Krauthammer claims elsewhere; if so, it is still protected, as long as the place is not used for speech which directly incites people to immediate violence.

The organizers claim, "Neither Park51 [the building] nor the mosque [it will contain] . . . will tolerate any kind of illegal or un-American activity or rhetoric." If they are sincere, then the legal debate is over. Religious freedom outweighs all the arguments about insult, insensitivity, and even sacrilege.

Even those who oppose the mosque should celebrate the freedom of religious expression which protects it from the majority's displeasure. A sober, thoughtful commitment to my own freedom should include the same commitment to others' freedom.


For government to obstruct the project now, someone would have to prove to reasonable minds -- not just inflamed hearts -- that the First Amendment doesn't apply, that the building's basic purpose is not religious devotion or even cultural outreach, but actual treason, which the First Amendment does not protect. The Supreme Court has sensibly declared that the Constitution safeguards individual rights, but "is not a suicide pact." (See Justice Arthur Goldberg, writing the Court's opinion in Kennedy v. Mendoz-Martinez [372 U.S. 144 (1963)], and  Justice Robert Jackson's dissent in Terminiellow v. Chicago [337 U.S. 1 (1949)].)

Here's how that could work. If the building's purpose is to advance the cause of imposing sharia on America, then its purpose is to overthrow the Constitution. An organized attempt to impose Islamic law on the United States would almost certainly constitute a conspiracy to overthrow the government -- as would an attempt to impose any other system of law.

So let's investigate. Just be advised that it's not a slam dunk. Suspicion will not be enough; we'll need proof that will stand up in court. If we don't have that, the First Amendment prevails.

It's not enough that a large mosque in that location is offensive or insensitive, or that it may inflame the very relations it proposes to heal. It's not enough that Imam Feisal Abdul Rauf, a leader of the project, blames the United States for many Muslim deaths. This is smoke, but not fire. Besides, plenty of non-Muslim Democrats on Capitol Hill feel essentially the same way. Rauf's association with the Cordoba Initiative -- named after a prominent Spanish city conquered by Muslims, which became the capital of an Islamic caliphate -- is more smoke, but not necessarily fire. When other Muslims call the project "mischief" and "a deliberate provocation to thumb our noses at the infidel," our suspicions are further aroused, but this is not proof, either. Even if we discover substantial Saudi funding of the project, we still don't have proof of treason. All we have is potentially fruitful lines of investigation.

I'm not optimistic that opponents will be able to prove their case. I'm not even sure they're right; it's possible that the mosque's essential purpose really is religious. Even if they are right, historically we're not good at discerning the peaceful and religious from the calculating and malevolent, until it's too late. (See Arnold Ahlert 's recent column for a sad example.)

On the other hand, if a serious investigation finds convincing evidence of treasonous intent, I would look for some official government action to block the project -- whether it's 2000 feet or 2000 miles from Ground Zero.


One final note. There is concern on both sides over what messages or lessons this affair might convey to our enemies, friends, and potential friends in the Muslim world. Depending on the outcome, one can imagine several different messages, some good and some bad. Are we friendly? Hostile? Shrewd? Naive and vulnerable? To a degree, the answer will be in the eye of the beholder, no matter how this ends.

For my part, I keep hoping to hear some mention of these possible lessons: That in a mature, modern society people can disagree passionately on the most fundamental principles . . . without blowing each other up. That in a free society government is not the only approach or solution to a problem or dispute. And that in the United States of America, the rule of law prevails even over public opinion.

So . . . is the Ground Zero mosque an earnest religious expression, or is it treason fashionably dressed? That is the crucial question.

A lot of people on both sides seem to think they know. I wish I knew.

Michael Carey comments (8/28/2010):

I think it is a bit misleading to say that we don't know whether the Ground Zero mosque project is treasonous. Perhaps you could argue that we don't really know anything at all, but I think we should refrain from implying that a person or organization is treasonous until we have some pretty good reason to think that they are.

Some people seem convinced that that George Bush played a role (or knew ion advance about) the 9/11 attacks. Others seem to know that he wasn't. I can honestly say that I don't know for sure what he knew or did. However, there should be a strong presumption of innocence so I don't think it right to imply that both sides are equally plausible.

David Rodeback comments (8/28/2010):

Michael, thanks for reading and commenting. I don't think that saying two things are possible is the same as saying they are equally likely. However, let me eludicate a little.

While it's logically true to say that the mosque's purpose is either essentially religious or not -- or that it is essentially treasonous or not, the possibilities are a little more complex than that. There is a range of perfectly legitimate religious purposes: worship (prayer), commemoration of the dead, education, and even evangelism -- by which I mean working to convert people to Islamic faith and even to Islamic law, by persuasion, not coercion. Cultural outreach may not be a strictly religious purpose, but it is perfectly legitimate, too. I'm sure that all these activities will be pursued at the new mosque and cultural center, if the edifice is built, and I am perfectly comfortable with all of them.

The project's leaders' stubborn attachment to the planned location, which almost anyone could have predicted would offend others terribly, invites us to wonder if there is not some additional purpose. Perhaps it is intended to celebrate what a few Muslim radicals did to the Great Satan, also known as the Land of the Free. I suspect that some who go there will attend with that in mind, and I wonder if that is not part of the project's purpose. However, it is not an illegal purpose, and if the building is used for legitimate religious purposes, too, this particular sort of darkness would not invalidate the building's claim to protection under the First Amendment, as a place of worship.

None of this reaches the level of treason. Only if there is a concerted, organized effort to impose sharia (Islamic law) on the United States by means other than persuasion -- I don't know that there is -- and if this project is actively and consciously a part of that effort -- I don't know that it is, and I'm not sure how we would prove it -- only then is the project beyond the protection of the First Amendment. I acknowledge this as a possibility; I don't think it is nearly as likely as the more benign possibilities I have mentioned.

David Rodeback comments (9/8/2010):

Here's a New York Times op/ed by none other than Feisal Abdul Rauf. Among other things, he says, "There will be separate prayer spaces for Muslims, Christians, Jews and men and women of other faiths. The center will also include a multifaith memorial dedicated to victims of the Sept. 11 attacks."

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