It had occurred to me earlier to day to post on the subject, but circumstances, as usual, conspired to prevent it before Steve put up his own post - I hope then that another post on the subject will be welcome.
One notable fact arising out of this event is that a considerable percentage of the Swiss electorate lied to the pollsters, expressing opposition to the measure before passing it. Notable, because people have taken the measure of their political establishments - the media being creatures of these - and, rather than calling down upon their weary ears a few weeks of politically correct dunning by openly avowing their support for the measure, simply withheld the truth from people who do only ill with it, and then carried out their intentions. Though I have not been to Switzerland, my father and I have traveled to numerous Western European nations; in every one of them, there is a current of alienation, among ordinary, non-political folks, from the establishments, political, economic, and media. Why should Switzerland be any different?
It is worthwhile, though, to reflect upon the following Stratfor analysis, for it affords a window on the mindset of the establishment, as well as their strategy moving forward:
SummaryVoters in Switzerland on Nov. 29 approved a ban on the construction of new minarets in the country. The ban has already stirred up criticism in the Muslim world, with Egypt’s Grand Mufti Sheikh Ali Gomaa speaking out against it. The ban also could create unrest in Muslim countries similar to that seen during the Danish cartoon controversy and stir up anger in Europe.
AnalysisSwitzerland on Nov. 29 banned the construction of new minarets, with 57 percent of voters and 22 out of its 26 cantons voting in favor of the ban in a nationwide referendum.
The construction ban has sparked condemnation across the Islamic world. Egypt’s Grand Mufti Sheikh Ali Gomaa, widely considered the most explicitly anti-extremist cleric in mainstream Sunni Islam and a relatively pro-Western religious leader due to his affiliation with the Egyptian state, condemned the ban Nov. 30 as insulting to Muslims everywhere. Ekmeleddin Ihsanoglu, the secretary general of the Organization of the Islamic Conference, called it an “example of growing anti-Islamic incitement in Europe by the extremist, anti-immigrant, xenophobic, racist, scare-mongering, ultra-right politicians who reign over common sense, wisdom and universal values.” The ban could precipitate anger and protest in the Muslim world akin to the violence seen during the Danish cartoon controversy in 2006.
The Swiss ban is not surprising considering the rising anti-foreigner attitude in Switzerland. The Swiss People’s Party, which campaigned for the ban and has concentrated its recent political campaigns almost exclusively on xenophobic messages, has seen a considerable rise in popularity in the last 10 years. With foreigners comprising around 20 percent of the Swiss population of 7.7 million, the overall anti-foreigner message (which is not exclusively anti-Muslim) has resonated with the traditionally insulated Swiss, particularly in the less cosmopolitan cantons of central Switzerland.
Domestically, the debate over the referendum has already precipitated unrest — not from Muslim groups, but rather from far-right groups against the Muslims. A mosque in Geneva was vandalized three times in the run up to the referendum. Switzerland is home to approximately 400,000 Muslims (about 5.1 percent of the Swiss population), most of whom are from Turkey or various republics of the former Yugoslavia (and therefore are either Albanian or Slavic Muslims). Thus, the Muslims in Switzerland are as secular and liberal as European Muslim populations get, and backlash against the referendum is unlikely to be violent. More likely, the Swiss government will see that the ban is overturned by the Swiss Federal Court for being unconstitutional. Justice Minister Eveline Widmer-Schlumpf has already said the ban contradicts the European Convention on Human Rights, which could mean that it would fall under the jurisdiction of the European Court of Human Rights.
Although Muslim groups inside Switzerland are not at all extremist, the ban sends a message to Europe’s Muslims as a whole — a message that implies the existence of a West-versus-Islam war. This creates a problem for the mainstream Muslim communities in Europe that are trying to rein in extremism within their ranks. The ban could serve as justification for the radicals who have long encouraged the perception that mainstream Europe is waging a war against Islam.
The question now is whether Islamist groups outside Switzerland will latch on to the decision in Switzerland as a rallying call for unrest. There have been other triggers for unrest among Islamist groups in the past — in particular the recent burqa ban proposal in France — and yet those issues did not spark violence on an international level. In the case of the Danish cartoon controversy, the issue only became a cause for violence in the Middle East five months after the publication of the cartoons, once Danish imams took a 43-page document of unrelated material on a tour of the Middle East with the intention of sparking controversy. It will therefore come down to who has interest in sparking violence — and it is too early to answer that question.
All of the now traditional cautions and anxieties about "xenophobia" are there, but what is interesting is that the Swiss government has already signaled an intention to challenge the legality of the measure, first in the Swiss Federal Court, and then, if necessary, in the European Court of Human Rights. As regards the first challenge, what it means, in formal terms, laying aside all of the pettifoggery about "rights", is that constitutional amendments are unconstitutional, inasmuch as these "change" the meaning of the constitution to something other than what it was previously. This is manifestly absurd, both in itself - unless constitutions are by nature static documents affording no means of revision - and practically. Are we to believe that the Swiss, when passing this referendum altering their own constitution, were really traducing the document, and ought to have known as much - that the true significance of their action was not deliberative, but revolutionary, a coup against fundamental law?
As regards any potential appeal to the European Court of Human Rights, the significance is quite plain: no nation has any just claim upon the preservation of its culture; indeed, any positive efforts to accomplish such preservation will be deemed invidious, discriminatory, and possibly as prelude to pogroms. It is forbidden to preserve, by any measures states and peoples have normally employed to establish cultural boundaries, the spiritual and physical environment within which a culture flourishes. The significance is not merely political however; plainly implied in this stance is the philosophical claim that culture is not, and should not be regarded as being, in any sense an artifact of human intention, both in its creation and perpetuation. It is not a result of some perception, wise or foolish, profound or facile, of the nature of things, and the collective wish that a form of life reflect this reality, but a mere snapshot of the flux of being, the fated transience of all things - in this case, the blind idiot god of individual preferences, creating and destroying entire life-worlds, gradually or suddenly, as the case may be, in a random, unholy cacophony of destructive creation. Why, they wish to be here, and to be Muslim here, and who are we to dare preserve our own cultural integrity in the face of such desires! In all honesty, I cannot take seriously such a position on the nature of culture. Anything that contravenes virtually all of human history, save modernity's senescence in our own time, merits only mockery. Culture just is about drawing lines, consciously, whether that line-drawing is called taboo, divine law, reason, enlightenment, the will to power, or whatever.
Finally, there is the omnipresent anxiety that any backsliding from this position of purely a-cultural formalism will enrage a segment of the world's population, which is then cited as a reason for stiffening the resolve to persist in the formalist kabuki theater of "rights". The meaning of this maneuver is not prudential, except circumstantially. The true significance of this posture is political, more a matter of the relationships of political elites to their own peoples, than of the relationships of the people with minorities of any sort. In effect, the elites of the Western world have engaged in demographic experimentation upon their peoples, quite against the expressed preferences of the latter; when the latter have voiced their objections, the response usually has been that any reversal in policy would be churlish, inhospitable, incendiary, or impracticable - in some sense threatening to fundamental goods of social stability. It is, quite nakedly, a ratchet effect: we, the elites, will do this to you, for your own good, but should you ever demur from our enlightened rule, something dreadful will happen to you; we shall force this upon you, and you may never, can never, go back. If you assent, we win; if you object, you lose.
Apropos of this, and the recent revelation that New Labour in the UK deliberately engineered an increase in mass third-world immigration, in part to learn the natives a lesson about diversity, it must be observed that such exercises in social re-engineering are, by the standards of the UN's own Declaration on Indigenous Rights, crimes against humanity (scroll down to commenter "Stari Momak's" entry)":
Article 8
1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention of, and redress for:
(a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;
(c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them.
All notions of "rights" are the products of particular cultures and traditions, and presuppose the normative structures of those civilizations, however confused postmodern Westerners may be about "rights"; any attempt to adjudicate competing rights-claims, as in cases such as that of the minarets, will presuppose a substantive doctrine rank-ordering such claims, specifying which claims count as actual rights, and the strengths with which they count. Hence, while it is true that the above-quoted UN doctrine is the product of a particular civilization, one endeavouring to reckon with its own legacy of colonial and imperial activities, the real issue is not with the claims of universal validity (a universal truth may be first revealed or discovered in a particular culture), but with the veiling of substantive commitments beneath the universalizing language, commitments seldom argued for, let alone justified, and the fact that these substantive commitments evince little concern for the civilization that made the language itself possible. The issue, that is to say, is self-loathing, and the unwillingness of the West to assert for itself what it so liberally, and often unwarrantably, grants to others. This is a crime of the Western elites against their own peoples, for they are as entitled to their traditions, customs, and lived environment as much as any other people. If the highest values of the West retain any validity, then the West is entitled to privilege itself, on its own ground.
Comments (45)
It is not credible that the Swiss misled the pollsters out of fear of appearing racist. Rather they were showing their contempt for the opinion-making classes. The threads of the narrative has completely slipped away from their hands. The people have shown that the ruling powers be they capitalists or bureaucrats do not amount to a hill of beans. The referendum result is confirmation that they are not being taken seriously except in their own peer-reviewed circles. The elites will continue with their Brezhnev era reeducation classes and lawfare work but the high-water mark of their influence has passed.
Posted by Ivan | December 1, 2009 1:37 AM
The unconstitutional thing is hilarious; how could anyone say that with a straight face? It would be like the SCOTUS declaring direct election of Senators unconstitutional.
At any rate, it is probably very good for Switzerland that it is not in the EU.
Posted by Matt Weber | December 1, 2009 6:48 AM
The very fact that the government is openly challenging the will of the people in a referendum is itself a key part of the problem. I understand the platitudes about republics versus democracies, but it is a sign of an illegitimate government that the state offers the people the pretense of direct sovereignty on an issue and then snatches it away from them when it doesn't agree with their exercise of said sovereignty.
Posted by Mike T | December 1, 2009 7:16 AM
The "unconstitutional" thing sounds familiar. Anyone remember? It's what the homosexual activists just tried in California about Proposal 8--an amendment to the state Constitution which they tried to have declared unconstitutional.
Posted by Lydia | December 1, 2009 8:37 AM
I can't recall if the California thing involved a claim that Prop 8 was unconstitutional based on Calif's constitution, or it was unconstitutional vis-a-vis the US Const. (perhaps both arguments were made). If the former, that would seem a bit absurd (assuming the Calif Con allows for the referendum process). The latter would not necessarily be absurd, at least not facially.
Posted by c matt | December 1, 2009 10:20 AM
The "unconstitutional" gambit is interesting, and not merely on the political level. What it demonstrates is an essential element of any fundamental law, whether pertaining to political society or religion, namely, that in the fundamental law, there can be no contradiction. This is especially obvious in the religious case, with some Christians endeavouring to resolve difficulties, real and apparent, in the scriptural texts, and others admitting the difficulties, even contradictions, but then resolving them by appeal to a higher law - an unwritten or magisterial tradition, which prioritizes certain textual claims over others.
Matters are no different with respect to constitutions. A regime must have a fundamental law expressing its character, and that law must admit of no contradictions, no underdeterminations, at least in principle. Were the fundamental law to admit of contradictions, the regime itself would be problematized, its nature left up for grabs; this would be to call into question its very legitimacy. Therefore, whenever contradictions or lacunae in the fundamental law are alleged, two options present themselves. The later statute thought to engender the contradiction may be said to modify or circumscribe earlier provisions, even overturn them altogether, as the Seventeenth Amendment provides for the direct election of Senators, and the Fourteenth amendment overturns the original constitutional compromises with regard to slavery. Or - and this is the option chosen by most elites - the contradiction is admitted, normally by begging the question of the meaning of the earlier constitutional provisions, and then resolved/abolished by appeal to a higher authority, an authority which then becomes, de facto if not de jure, the fundamental law.
The trouble is that the latter option is utterly incapable of reconciliation with representative government in any meaningful sense of this latter term. This is not really an issue in the religious sphere, and here that analogy breaks down, inasmuch as divine revelation, however given, is simply not democratic; democratic religion is not oriented towards the divine, but towards the community itself - it is the community's self-celebration. Politics, however, is not religion, and gambits such as the "unconstitutional constitutional amendment" one only raise the question of legitimacy, regardless of the rightness or wrongness of any specific measures, such as a prohibition on minarets. If a people have no legal "right" to do the "wrong" thing, politically speaking, then they are not politically free. In an age of globalization, in which peoples decide literally nothing of significance to their own forms of life, whether in law, political economy, or culture, they are not free - except to become hedonistic consumptivores in the Pink Police State.
Posted by Maximos | December 1, 2009 10:34 AM
Is this Swiss referendum really a constitutional amendment? I missed where it said that. Anyway, the "unconstitutional" argument (against Proposition 8 at least, which involved only the California Constitution) does not seem unreasonable on its face. According to one constitutional theory, there's a distinction between a constitution in the existential sense on one hand, and the constitutional law - the actual laws that make up that constitution - on the other. See Carl Schmitt, Constitutional Theory; I'm just citing it from memory, so maybe inaccurately. The idea is that formal procedures for amending the constitutional laws don't apply to existential changes. For instance, (this example is mine, not Schmitt's) you can't take a democratic constitution and amend it by the usual formal procedures to replace it with an absolute monarchy. I'm not saying that this theory is right, or even that it applies to Proposition 8 or whatever - only that it's part of an influential constitutional theory by one of the 20th century's leading jurists.
Legal questions aside, I don't see the point of banning minarets, other than to say, "We don't want Muslims here". But if Muslims are already in Switzerland, why not let them worship as they like, unless there's a substantive problem with it? Apparently calls to prayer are already regulated. Is the problem that the minarets are taller than church steeples, or what? All that stuff Mr. Martin writes about culture being about drawing lines etc. is just fine, but why these lines?
Posted by Aaron | December 1, 2009 10:55 AM
Maximos,
As someone who never fails to disagree with you on all sorts of issues related to political economy, I want to be the first to say this post may be one of the most well-argued, carefully reasoned defenses of Western civilization specifically; and what Thomas Sowell calls more generally "the constrained vision" vs. the "unconstrained vision":
Posted by Jeff Singer | December 1, 2009 11:08 AM
This classic Roger Kimball post about the famous quote of General Napier in India is also relevant to this discussion:
http://pajamasmedia.com/rogerkimball/?s=suttee
Posted by Jeff Singer | December 1, 2009 11:28 AM
The California Constitution allows amending by initiative but differentiates between amending and revising, the latter being allowed only if the legislature is involved. Unfortunately the California Supreme Court choked at calling a clear denial of fundamental rights a revision (to be objective the other side had a case).
A case challenging prop 8 has been filed in Federal District Court in California. "Theodore B. Olson and David Boies, two of the nation's most preeminent constitutional lawyers, the suit states that Proposition 8 creates a class of "second-class citizens" and thereby violates the U.S. Constitution."
The suit states that "This unequal treatment of gays and lesbians denies the basic liberties and equal protection under the law that are guaranteed by the Fourteenth Amendment of the United States Constitution,"
While I am not usually a fan of the notion of "American Exceptionalism" because of the folks who usually assert it, it is things like the Swiss case that make me glad that we are not like them, except for you all, of course.
It would be nice if everyone who lived here had internalized our basic values like equal protection and due process but I really don't understand the sneering attitude at those basic rights in the posts over this issue. At a minimum, if one owns a piece of land, one should have the right to do with that land what others who are similarly situated are able to do.
I feel for those Swiss who have their heads on straight as this vote is a real shanda for Switzerland.
Posted by al | December 1, 2009 11:29 AM
Aaron, the differentiation between constitutional and existential changes begs the question of what certain legal provisions actually mean; in the case at hand, as applied, it presupposes that Swiss guarantees of religious liberty mean that Muslim religious life may assume specific forms, and that the native populations have no entitlement to preserve their own lived environment/culture in the face of this. This has never been demonstrated; it has only been assumed. If anything, the fact that Swiss law bans the call to prayer would seem to imply that further restrictions upon Islamic practice are prima facie legitimate. One can pose the question, "Why this line?" with respect to the minaret ban, but opponents of the new measure must answer the same question: why is the ban upon muezzins wailing through loudspeakers acceptable, while a ban on architectural innovations is not? The difference between sound and sight is meaningless here, as anyone schooled in aesthetics could tell us; both are alike an affront upon a specific culture.
In any event, the invocation of Carl Schmitt only serves to reinforce my argument, inasmuch as Schmitt's theory of decisionism entails that the fundamental law is not the fundamental law, but that some supra-legal authority is the repository of legitimacy. The Bushist theory of executive dictatorship was one form of this idea in contemporary politics; the idea of a judiciary that retains veto powers over revisions to a constitution is another. We Americans are doubly cursed, in that we have both executive and judicial branches under the sway of such theorizing.
Posted by Maximos | December 1, 2009 11:45 AM
"One can pose the question, "Why this line?" with respect to the minaret ban, but opponents of the new measure must answer the same question: why is the ban upon muezzins wailing through loudspeakers acceptable, while a ban on architectural innovations is not? The difference between sound and sight is meaningless here, as anyone schooled in aesthetics could tell us; both are alike an affront upon a specific culture."
The notion of "cultural affront" is grounded in some combination of fear, weakness, and ignorance; it makes no difference if we are dealing with acid throwers in south Asia or Swiss voters.
In the Los Angeles area, one can drive from a mosque with a minaret in Culver City to a Hindu temple in Malibu to a Thai styled Buddhist temple in the Valley and pass all styles of Christian and Jewish places of worship. Freedom is good, mkay.
Sound and sight are two very different things. Sound can be easily quantified; sight. not so much. In the situation you mention, we need only to ask if church bells are allowed to be rung and under what conditions and at what decibel levels.
Architectural standards are far more problematic (I know of cases in which individuals had no problem getting their designs passed when working for a certain firm but then had problems as sole practitioners). Basic zoning can be objective - height and clearances, for example, so the test would be, are steeples allowed and what are the design standards?
The California Constitution differentiates between "amending" and "revision". There is nothing Schmittian about the courts being the arbiter.
Posted by al | December 1, 2009 12:57 PM
Actually, no, sound and sight are not different, inasmuch as it is not quantification that matters, except to a handful of secularists who like to sleep off their Saturday night revelries, but the meaning of any given sound. I rather like the sound of the muezzin, considered purely as sound; I don't much care for what it signifies. Just as the Swiss do not much care for what the minarets signify. Neither do I much care that there is a Hindu temple 10 minutes from my home; Hindus neither wish to convert me, nor to impose their cultural practices upon me, as do a subset of the Muslim population.
Freedom is good, mkay
Except the freedom to preserve one's own culture as something more than the transient aggregation of individual lifestyle preferences.
The California Constitution differentiates between "amending" and "revision". There is nothing Schmittian about the courts being the arbiter.
I'm not even addressing this, except to note, as I will now, that if that distinction is valid, then the California legislature and supreme court are behaving in the Schimittean fashion, as there was no question two decades ago that the rights guaranteed under that constitution did not entail a right of gays to pretend to get married. And now, supposedly, it does, not because the constitution was amended or revised to clarify this, but because some members of the elite determined that it be so. They decide, you submit. In any event, I don't care about this for the present. The Swiss government, should it decide to contest the referendum will be conducting itself as a Schmittean sovereign.
Posted by Maximos | December 1, 2009 1:21 PM
If Christians, LDS and JWs have the right to proselytize, then so should Muslims. A culture that fears peaceable confrontation and that can survive only through intimidation has likely run its course and needs to butch up or go away. Our history of oppressing Catholics and LDS was hardly our best moments.
If one values a free society then a given culture needs to make its way in the world without using the heavy hand of the state.
Peaceable enjoyment of ones property, reasonably defined, is the standard that should to applied to sound and this is merely a function of time and level. "Meaning" is too subjective to ever be applied as a legal standard (styles of music and gunshots come to mind).
If an entity's constitution provides for various checks and balances in its amending process then one of the checking and balancing parties exercising its constitutionally mandated function can hardly be termed "extra-legal".
Posted by al | December 1, 2009 2:46 PM
Just to correct my previous post, the example I gave was in fact Schmitt's, not mine (I went and checked). I don't know what Mr. Martin means about Schmitt's theory entailing that "the fundamental law is not the fundamental law". Schmitt's example explains it better than I could. After distinguishing between constitution and constitutional law he writes:
A government would not be "conducting itself as a Schmittian sovereign" if it contests the constitutionality of an amendment on these grounds. If the government were to argue on the grounds of the distinction between constitution and constitutional law, then it would be defending, not suspending, normal, positive public law against what it claims is an unconstitutional act.
Al is basically right, above. The California Constitution apparently tries to reflect Schmitt's distinction between constitution and constitutional law, which he claims was muddled in the Weimar Constitution. Schmitt might say that the California Constitution just pays lip service to the distinction, because it gives the "constitutionally sanctioned legislative body" itself - together with a simple majority of voters, which is a strange combination - the capacity to remake the constitution, as opposed to just changing constitutional law. But what strikes me as the most anti-Schmittian aspect is that the California Constitution contains a procedure to "revise" (i.e., annihilate) itself!
Posted by Aaron | December 1, 2009 3:06 PM
My question (legalities aside) about the Swiss referendum was a lot simpler than Jeff Martin apparently understood. I agree that the Swiss have a legitimate right to ban minarets, assuming they have the positive, legal right. I agree that there's no qualitative difference between ugly sights and sounds. I just don't understand why you would want to do this! It just seems plain mean. I say that as someone whose attitude towards immigration is about that of vdare.com, so I'm not a bleeding-heart liberal.
Posted by Aaron | December 1, 2009 3:14 PM
If an entity's constitution provides for various checks and balances in its amending process then one of the checking and balancing parties exercising its constitutionally mandated function can hardly be termed "extra-legal".
Actually, yes it can, inasmuch as no constitution of which I'm aware actually stipulates that the results of its amendment procedures are valid only if a court says so. If the procedure is followed, the document is amended. Period.
Posted by Maximos | December 1, 2009 3:18 PM
Bingo, Jeff.
And I appreciate the main post, too, btw.
Aaron, if you're not a bleeding heart liberal, why do you even appeal to a category like "mean" for something like this? I mean, here would be an example of something I would think of as mean: Some country passes a law that says that the federal government will post on every street corner a sign saying, "Muslims are all crazy, bomb-throwing terrorists, and we should hate them." Okay, _that's_ mean. But why can't the Swiss or anyone else say, "Gee, we don't want our country to look like it's been conquered by the Ottomans. Let's at least not have a bunch of minarets sticking up all over the place."
Local cities have ordinances about building codes and such all the time. If some city can have a rule that houses can't be painted chartreuse green (and cities _do_ have ordinances about acceptable colors for house painting, believe it or not), why can't a small country have an ordinance about minaret-building?
Posted by Lydia | December 1, 2009 3:31 PM
A government would not be "conducting itself as a Schmittian sovereign" if it contests the constitutionality of an amendment on these grounds. If the government were to argue on the grounds of the distinction between constitution and constitutional law, then it would be defending, not suspending, normal, positive public law against what it claims is an unconstitutional act.
Yes, it would be conducting itself as a Schmittean sovereign, because the "right" to practice a non-native religion in this particular respect is neither the totality of the constitution, nor the summation of its law; there is no revolution here of the fundamental law of Switzerland, since that nation is not being transformed from a republic into some sort of dictatorship. Same for the California constitution and marriage, which, when liberalized, was not done democratically, but by certain elites changing their minds over time.
To be perfectly frank, people applying this distinction to these cases are open to a significant historical objection: should the Supreme Court have ruled the Fourteenth Amendment "unconstitutional" tout court (as opposed to piecemeal and procedurally, through Slaughterhouse and its progeny), on the grounds that it, far from merely altering a few provisions, profoundly revolutionized the entire system of government (which it did, if only in principle initially)? Certainly not. These changes in California and Switzerland are orders of magnitude less revolutionary than the abolition of slavery and its incidents.
Posted by Maximos | December 1, 2009 3:37 PM
Al --
Actually the US oppression of the LDS was one of our best moments. The LDS abandoned a wicked doctrine and a seditious disposition, and Mormons soon assimilated into the mainstream of American society. It's a happy ending even a liberal can appreciate.
Posted by Paul J Cella | December 1, 2009 4:17 PM
"But what strikes me as the most anti-Schmittian aspect is that the California Constitution contains a procedure to "revise" (i.e., annihilate) itself!"
So does the Federal Constitution. A constitutional convention per Article V could chuck the whole thing and come up with something else.
Arron is on the money with "mean" and I would add petty and vicious. Still times change and the Muslims are fortunate that they do. Back in the day, the Jews of various Swiss cities weren't so lucky, they were often scapegoated for various reasons and burnt en masse at the stake. Now it seems the descendants of those good burghers are content with building code restrictions.
"I agree that there's no qualitative difference between ugly sights and sounds."
Help me here. We have barking dog laws but not ugly dog laws for a reason - sound has the ability to impact ones ability to enjoy their home in a way that sight can't. By what practical standards can anyone equate the two?
"Actually, yes it can, inasmuch as no constitution of which I'm aware actually stipulates that the results of its amendment procedures are valid only if a court says so. If the procedure is followed, the document is amended. Period"
No. Any amending procedure is liable to error or dispute and in our system we resort to the courts. Schmitt is a red herring here. Your problem is with Hamilton and Marshall. An independent judiciary is a feature not a bug.
For example here is the relevant section of the California Constitution:
"CALIFORNIA CONSTITUTION
ARTICLE 2 VOTING, INITIATIVE AND REFERENDUM, AND RECALL
SEC. 8. (a) The initiative is the power of the electors to propose
statutes and amendments to the Constitution and to adopt or reject
them.
(b) An initiative measure may be proposed by presenting to the
Secretary of State a petition that sets forth the text of the
proposed statute or amendment to the Constitution and is certified to
have been signed by electors equal in number to 5 percent in the
case of a statute, and 8 percent in the case of an amendment to the
Constitution, of the votes for all candidates for Governor at the
last gubernatorial election.
(c) The Secretary of State shall then submit the measure at the
next general election held at least 131 days after it qualifies or at
any special statewide election held prior to that general election.
The Governor may call a special statewide election for the measure.
(d) An initiative measure embracing more than one subject may not
be submitted to the electors or have any effect.
(e) An initiative measure may not include or exclude any political
subdivision of the State from the application or effect of its
provisions based upon approval or disapproval of the initiative
measure, or based upon the casting of a specified percentage of votes
in favor of the measure, by the electors of that political
subdivision.
(f) An initiative measure may not contain alternative or
cumulative provisions wherein one or more of those provisions would
become law depending upon the casting of a specified percentage of
votes for or against the measure."
As you can see there are a number of points where errors or disputes can happen. The state constitution also created the judicial system and that is where we take differences of opinion over other parts of the constitution. A petition is submitted to the Sec. of State and she says not enough signatures. If the submitters disagree, off we go to court. The Attorney General says more than one subject, You say no and off we go. You say amend, I say revise, who decides?
I'm not sure what your point is re: the Fourteenth Amendment. A reactionary and corrupt majority set the nation back. Things often take time. An interesting and on point amicus brief on a current case involving incorporation,
http://www.theusconstitution.org/upload/fck/file/File_storage/08-1521%20tsac%20Constitutional%20Accountability%20Center.pdf
"Local cities have ordinances about building codes and such all the time. If some city can have a rule that houses can't be painted chartreuse green (and cities _do_ have ordinances about acceptable colors for house painting, believe it or not), why can't a small country have an ordinance about minaret-building?"
Cities can have these laws but they have to apply them equally (at least in the United States - pesky notions of Equal Protection). I can't imagine a law that would ban minarets in this country that wouldn't ban similar suructures including steeples. Switzerland may also have notions of equal protection that will void the law.
Posted by al | December 2, 2009 12:35 AM
What, is the law supposed to be self-applying? Questions under dispute might include: was the appropriate procedure followed (e.g., "amendment" or "revision")? was it followed correctly? might there be conflicting constitutional law? etc. Somebody's got to decide legal disputes, whether it's a court or some other body.
What you call a "Schmittean sovereign [act]" is nothing of the sort. Read Political Theology, especially the first essay which begins, "Sovereign is he who decides on the exception." An exception isn't just any time some government official feels like throwing out some law. What you describe wouldn't be a sovereign act by any definition, as far as I can tell. For Bodin and Hobbes, the sovereign in a democracy like Switzerland would be the people.
Posted by Aaron | December 2, 2009 3:11 AM
Lydia, I say the referendum is just plain mean because it's not like banning ugly chartreuse buildings. You're not insulting a person's taste in buildings, you're insulting the person. Given the existence of the Muslim population in Switzerland, it's not a severe burden for Swiss to be occasionally reminded of that fact at a greater radius then they would if only the mosque itself were there, without the minaret.
If Muslims are a problem, then do something about the problem. This referendum is just a childish gesture.
Posted by Aaron | December 2, 2009 3:22 AM
Any amending procedure is liable to error or dispute and in our system we resort to the courts.
No one is credibly alleging a procedural error in the California and Swiss cases; to the contrary, the claim is that already-existing provisions concerning religious liberties and personal freedoms were traduced by the amendments, and that some higher authority should interpose itself to resolved the alleged contradictions. This is codswallop for two reasons. First, in the California case, no formal amendment was ever passed stipulating that the guarantees of personal freedom and equality of "rights", which at t1 were not understood to legitimize gay "marriages", became legitimate at t2. Rather, a subset of the California elite effectively changed their minds, and made that change of mind efficacious legally, without going through the procedure of amending the constitution. Revolutionizing the common understanding of a constitution without following the requisite procedures is very close to the 'change of constitution' that Schmitt deemed illicit. Second, in the Swiss case, as already described, there has been no demonstration of any kind that the religious liberty of Muslims extends to the thing recently prohibited, such that a contradiction would arise in the first place. The very fact that muezzins have been prohibited for some time suggests that nothing is novel in the minaret ban, save the confusion of many concerning cultural signifiers. In neither case have formal, procedural irregularities been alleged, which means that the citation of the section of the California constitution above is really inapposite.
I'm not sure what your point is re: the Fourteenth Amendment.
Simple. Even if we grant that these measures, in California and Switzerland, respectively, have substantively altered the meaning of provisions guaranteeing certain rights and liberties, it does not follow that they are illicit on those grounds. The Fourteenth Amendment was much more sweeping in its revision of the American constitutional order, granting long-denied rights to freed slaves, and depriving whole swathes of the population of previously-held rights to hold slaves and restrict access to the political process. The fact that this was a substantive revision didn't make the amendment illicit; rather, the procedures were followed, and the Constitution was altered. End of story, except for the bit about actually enforcing the amendment.
Questions under dispute might include: was the appropriate procedure followed (e.g., "amendment" or "revision")? was it followed correctly? might there be conflicting constitutional law? etc.
And there have been no procedural errors. The existence of conflicting constitutional law has been alleged, but, as argued ad nauseum, this allegation is not credible. In the fundamental law, there can be no contradiction. Even if it were the case that existing guarantees of rights extended to the things recently proscribed, the amendment, upon the observance of the correct procedures, circumscribes those rights. The respective constitutions once allowed gay "marriages" and the construction of minarets. Now they do not. The end. It's touching though, to see various opponents of these measures, after a period of legal history in which a jurist could be dragged through the mud for believing in a higher, or 'natural' law above the Constitution (Clarence Thomas), embracing a similar view of a higher law. They haven't proven that the positive constitutional law in either case actually meant that gays could "marry" or Muslims erect minarets; by necessary implication this means that they were tacitly presupposing some higher law, numinously governing the meaning of rights guarantees.
"Sovereign is he who decides on the exception."
Yes. Some authorities in these two cases are deciding upon the exceptions to the amendment procedures of their own constitutions. They apply except when.... No different than Bush saying that the Constitution applies, except when The Decider invokes "national security", for reasons he need never justify.
Posted by Maximos | December 2, 2009 7:50 AM
al,
Just one quick question, related to this statement of yours:
"Back in the day, the Jews of various Swiss cities weren't so lucky, they were often scapegoated for various reasons and burnt en masse at the stake."
Could you provide a historical link backing up this claim? I often read liberals bemoaning the Church's (or Christianity's) crimes of the past, but just as often they have no idea what they are talking about. For example, the sum total of witches burned in New England by Puritans is 35 or 36 depending on how you count the victims. Compared to secular tyrannts I'd say not a bad record.
Posted by Jeff Singer | December 2, 2009 9:13 AM
I can't help feeling that this attempt to say that one is "scrapping" an entire constitution when one passes an amendment liberals don't like to ward off or reverse rule by judiciary is, in part, an attempt to bolster us against the bare possibility that pro-lifers might one day pass a pro-life amendment to the U.S. Constitution or even a marriage protection amendment to the Constitution. Or even a "federalism" amendment on the abortion issue, stating that nothing in the Constitution shall be read as requiring the states to permit abortion.
How clever: Liberals read stuff into constitutions that *obviously aren't there* without the faintest hint of following procedure. They just get nine men to read them in these bizarre, new ways as including "fundamental rights" you couldn't see with a microscope, lurking in the penumbras. In other words, they violate procedure hugely, because they can't be bothered to amend the constitution for purposes of the radical social change they want. Then when or if conservatives gather together and _do_ go through the cumbersome amendment process and clarify, "No, this _isn't_ a right guaranteed by this constitution," the liberals piously now proclaim that conservatives haven't followed proper procedure, because they had to go through the *still more cumbersome* process of revising the *entire* constitution, given that, you know, these fundamental rights are so built into the fabric of the constitution, blah, blah, that it's a "revision" to deny them.
What obvious, deceptive, self-serving, power-hungry, baloney. It makes me positively ill. And all done through the courts. Look, Ma, no democracy. But _we're_ the ones not following procedure?
Go, Maximos. Good comment at 7:50.
Posted by Lydia | December 2, 2009 9:37 AM
Al said:
If Christians, LDS and JWs have the right to proselytize, then so should Muslims. A culture that fears peaceable confrontation and that can survive only through intimidation has likely run its course and needs to butch up or go away.
Sometimes a cliche is the best response; Is the US Constitution a suicide pack?
A culture is in large part defined by what it excludes.
Posted by Randy Estes | December 2, 2009 11:17 AM
Jeff, I don't believe I mentioned the Church. As I recall it was the townsfolk in these cases who demanded the Jews be burnt. I also seem to recall that at least one of the Popes at the time protected those Jews he could. Many matters in the 14th century were local and chaotic in Europe. My point was about appples not falling far from the tree.
No witches were burnt in New England; they were all hanged. One chap was pressed to death which I assume was to induce a plea as that was the law in England at the time.
I'll see what I can find about sources as I have time.
Posted by al | December 2, 2009 11:30 AM
"2 If the initiative fails to comply with the requirements of consistency of form, and of subject matter, or if it infringes mandatory provisions of international law, the Federal Assembly shall declare it to be invalid in whole or in part."
This is from Art. 139 of the Swiss Federal Constitution. So much for "extra-legal"
I also found this:
"Art. 69 Culture
1 Cultural matters shall be a cantonal responsibility.
2 The Confederation may support cultural activities of national interest as well as art and music, in particular in the field of education.
3 In the fulfilment of its duties, it shall take account of the cultural and linguistic diversity of the country."
There are also sections on subsidiarity and cantonal authority as well as Article 8:
"Art. 8 Equality before the law
1 Everyone shall be equal before the law.
2 No one may be discriminated against, in particular on grounds of origin, race, gender, age, language, social position, way of life, religious, ideological, or political convictions, or because of a physical, mental or psychological disability.
3 Men and women shall have equal rights. The law shall ensure their equality, both in law and in practice, most particularly in the family, in education, and in the workplace. Men and women shall have the right to equal pay for work of equal value.
4 The law shall provide for the elimination of inequalities that affect persons with disabilities."
We would seem to have problem on a facial reading of the measure and the Constitution.
Posted by al | December 2, 2009 12:40 PM
Actually, we don't have a problem on a facial reading of the minarets measure and the Swiss Constitution. Switzerland already prohibits Muezzins and permits church bells, from which it follows that such measures do not infringe the legal equality of all religions. In other words, you've got to specify the content of terms such as "equality", rather than simply invoking them, like so many caveman's cudgels, to pummel everything into a grey sameness.
Posted by Maximos | December 2, 2009 1:04 PM
This sentence just makes me laughing mad. Anti-immigrant? No country has to allow immigrants. Immigration is not a right, it is a concession. Xenophobic? No country has to love aliens. Immigration is not a right, it is a concession. Racist? Since when did Islam become a race? Scare-mongering? What's to be afraid of a few suicide bombers? Universal Values? Who's universal values? If the values were universal, there couldn't be a vote because everyone would hold them.
Silly.
The Chicken
Posted by The Masked Chicken | December 2, 2009 1:49 PM
Maybe or not. What is the wording of the law(s) to which you refer? I found the sitee for Basel, but there's no way I can read it. For those who read German,
http://www.bs.ch/
Posted by al | December 2, 2009 1:55 PM
To put a finer point on things. Noise ordinances are usually based on time of day, decibel level, and duration. If my dog barks for 30 seconds - no problem. 30 minutes - problem. If I fire up the chainsaw at noon I'm ok but at midnight the sheriff is coming.
Both fajr and isha would fall under reasonable time restrictions. Can one ring church bells willy-nilly in Switzerland? There needs to be some meat on your assertional bones.
Posted by al | December 2, 2009 2:12 PM
Maximos, your two examples, of attempts to nullify Proposition 8 and the Swiss referendum, are not what's meant by "sovereign" or "exception". I recommend reading the whole essay, not just the first sentence - though even the first few paragraphs should be enough to set you straight.
Your other example, of President Bush allegedly suspending some constitutional protections, may actually fit Schmitt's meaning of the exception. Some have famously said that it does, but Google tells me that others argue that it doesn't. I certainly don't know enough to have an opinion.
Posted by Aaron | December 2, 2009 3:04 PM
Maximos, your two examples, of attempts to nullify Proposition 8 and the Swiss referendum, are not what's meant by "sovereign" or "exception". I recommend reading the whole essay, not just the first sentence - though even the first few paragraphs should be enough to set you straight.
Heh. I knew that this objection would be coming when I pulled my copy of Political Theology from the shelf this morning. And the objection is perfectly correct, if we are concerned to perform and exacting exegesis of Schmitt. In political reality, however, partisans on all sides treat any number of things not as the minor little contretemps that they are by nature, but as states of emergency, impacting the very nature of the regime; and while this is not exactly what Schmitt had in mind, these partisans are attempting to invoke states of exception, even though they seldom admit what they are doing. It's not exactly what Schmitt had in mind, though it bears a family resemblance. As long as we admit what we're doing, I don't have much of a problem with this, since this is simply how people reason, or "reason", about things all the time. It's probably biological, too.
As to the particular cases, the partisans don't see themselves as invoking any sort of state of exception, because they have false understandings of what constitutions are, and what procedures they enshrine, and believe that their emanations are really there. Understood objectively, as objectively as possible, the emanations are not there, and what they are attempting is to override normal procedures to get the results they desire. Close enough to Schmitt for me. It's the setting aside of normal law and procedure that makes the analogy.
Noise ordinances are usually based on time of day...
Except that muezzins are not permitted at all. So, even if the ringing of church bells is permitted at certain times, and under certain limits, the law already differentiates between Christian practice and Islamic practice.
Posted by Maximos | December 2, 2009 3:40 PM
Maximos, that wasn't what I asked. What is your source? we don't have enough information. While steeples and minarets are analogous, I can see where bells and the muezzin may not be.
Equality under the law means that persons with the same issues before the law are treated in the same manner under the law.
Posted by al | December 2, 2009 4:30 PM
Google is your friend. Church bells are rung fairly liberally in Switzerland.
As for equality before the law, well, who said that Christianity and Islam are the same thing? That question is being begged. A steeple is not a minaret, because the semiotics are different. Ergo, the law can treat them differently.
Posted by Maximos | December 2, 2009 5:07 PM
I say, go ahead and get WW III out of the way so we can start picking up the pieces [I'm half-serious, here]. We can start it on the pretext of bells, books, and candles.
As long as anyone takes theology seriously and there are different all-or-nothing theologies, such a war is inevitable (unless amoral space aliens attack and we have to band together as a planet - yeah, that's what we need, amoral space aliens...). So, I conclude (in jest) that if no one took theology seriously, we would have no wars and we could plan for the invasion of the amoral space aliens.
Boy, all these great ideas. How come no one ever takes me seriously?
Sometimes the world takes itself so seriously, the only response is to be mad.
The Chicken
Posted by The Masked Chicken | December 2, 2009 5:35 PM
Okay, just a little mad.
The Chicken
Posted by The Masked Chicken | December 2, 2009 5:36 PM
Modern society seems to assume that all religions are equally useless and irrelevant.
Posted by Matt Weber | December 2, 2009 5:41 PM
If Christians, LDS and JWs have the right to proselytize, then so should Muslims.
The Christians, The LDS, and The JWs do not have Doctrine commanding their adherents kill the unbelievers. Muslims do.
What you purpose is a succinct summary of Mr. Auster's Principle of Non-Discrimination.
Posted by I am not Spartacus | December 2, 2009 5:53 PM
Chicken, what you say here ironically is, of course, exactly what the naked public square people believe with grave seriousness. Religion must be privatized in a radical and absolute fashion, and then we will have no wars. Pay no attention to those secularist evil dictators and mass murderers behind the curtain.
Posted by Lydia | December 2, 2009 8:09 PM
Just a few points about the minaret ban that may not have been addressed adequately in the recent media and web coverage.
1) I saw three messages conveyed in the vote on the minaret ban:
a) The first message was actually to the Swiss government to make them aware that the Swiss middle class was failing to see what it was getting out of the ‘recent’ immigration influx besides aggravation and money out of their pockets. The Swiss middle class believes that the Swiss oligarchs are the direct beneficiary of good relations with the Muslim world, with little of the benefits trickling down to them.
b) The second message was to the ‘recent’ Islamic immigrants to remind them that they were still guests in Switzerland and should put more emphasis on integrating themselves with the indigenous population; not the reverse. The Swiss have felt bullied by the Islamic world (due to various recent incidents) with the Swiss government seemingly stuck in appeasement mode to protect focused banking and industrial interests.
c) The third message may have been to the religious community at large. Switzerland has had a troubled, very often violent, and actually quite intolerant religious history that has left numerous scars on the psyche of the people of the rural areas north of Bern, in particular. The same ones which drove the surprise vote. The country, overall, has been slowly drifting into atheism and the last thing that these people want is yet another militant religious initiative to disturb things.
2) The minaret legal fight in Langenthal, located in the middle of these same rural areas where myself I partly grew up, had surely a strong impact on the outcome of the vote. The Swiss of these rural areas like them just the way they are and are not willing to spend the time and money to fight the minarets one at the time. Just get rid of the whole problem in just one swoop. That’s very Swiss.
3) I question the validity of the pre-election polls. In particular since they currently appear to reflect the proportional final outcomes of the larger cities and of the French-speaking areas of Switzerland. Maybe the pollsters’ legs got tired and they did not go far enough in the hills.
It could be an interesting studying point that the people of these Swiss rural areas north of Bern are descendants in part from Jews enslaved and deported by the Romans after the destruction of the Temple in 70 A.D.. 20,000 of these Jews that had revolted and fought against the Romans were brought in to work on the Roman frontier fortifications. It is quite revealing to take a look at the ancient coat of arms of the various towns in this area. The Swiss in these areas are commonly referred to as ‘the rebels’ by other Swiss from a certain generation, and have never shied away to be contrarian to religious and other beliefs (hence all the historical troubles). The so-called ‘Dutch’ Amish in the U.S. may actually have originated from there, as well as some other religious movements now thriving in the United States.
Crusaders on their way to the Holy Land are reputed to have ravaged these areas on many occasions, claiming that they ‘did not have to wait to get to the Holy Land to kill infidels since they had some right there’.
It may be just possible that these Swiss had enough of ‘spirituality’, at least for the time being.
Posted by Serge | December 3, 2009 2:49 AM
Switzerland gets smaller and smaller.
http://www.talkingpointsmemo.com/archives/2009/12/swiss_really_on_a_roll.php?ref=fpblg
Posted by al | December 4, 2009 12:17 AM
hmm...I just couldn't went to the whole comments and the topic but as a muslim I am too aware of the recent ban of Swiss government on Minarets.
I couldn't understand that what is that swiss government afraid of?
Its just a building people...a place..a classical reminder to Muslims of their holy place where they can pray.
I don't believe that normal people can think such wrongly or against about their own neigbhours or fellow citizen.
And also just baning a MINARET can not prevent Swiss government from some Muslims extremists.
As in every community, there are black sheeps and so do we (Muslims) have....but it does not mean that every Muslim is a terrorist or every Muslim is making a distruction plan in their holy places.
hmmm.....
Posted by Thinking | December 4, 2009 4:54 PM