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Ground Zero Mosque Debate

Judge Hercules & Obama’s Ground Zero Mosque



In the current controversy engulfing survivors and families of the September 11th tragedy, unfolds a train-wreck of legal and moral claims about use of the still-leveled site. This pits supposedly well-meaning Muslims against stalwarts suspiciously opposed to Islam establishing a beachhead in the area. So, what is the right answer and who should prevail in the matter? Does a legal property right confer a larger "right" of development within a community, regardless of any other issues?

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Professor Ronald Dworkin has a novel suggestion for treating such thorny legal disputes. In his book Law's Empire, Dworkin offers his unparalleled Judge Hercules to tackle such cases. Hercules is a Superjudge who tackles the "hard cases" from which other judges shrink. He uses the law as it stands, but adds such criteria as "Integrity," "Community," "Morality" and the social and historical matrix law develops within to find his "Interpretive" conclusions which lead to best results. Interestingly, Dworkin claims a good jurist can find the "Right Answer." This is the "single best answer" to a hard case not only creating a new standard but representing the emergence of real justice to a previously confused situation. A Right Answer to the painful Ground Zero mosque dilemma is what this essay aims for.

I. Ground Zero Mosque Debate

A debate has erupted over land in the area leveled by the 911 hijackers, which Muslims have purchased to build a mosque. This structure has become the piece de resistance for many Liberals, whereas the idea horrifies many others across the spectrum. The subject has drawn out a classic debate over the issue of constitutional rights versus justice and common sense.

II. Judge Hercules

Imagine if you had a world class jurist, completely unbiased with an almost divine knowledge of law, history, philosophy, religion and human nature to decide your case? Wouldn't you be relieved? This is Ronald Dworkin's Judge Hercules, whom the New York Times thusly describes:
Hercules is Superjudge, endowed with unmatched knowledge of the law and unlimited time to trace the implications of principle. No mere magnification of any human judge, he is instead a metaphor for the way adjudication ideally should be done. Hercules, grasping all the interconnections of the law, understands fully the purpose of the law. He decides cases in the way that puts the law in the best possible light according to its purpose. For Hercules there is one right way to decide a case, and he achieves the right way. A decision by Hercules displays justice, fairness and integrity.

III. Judge Hercules' Tools

The interpretive legal bag of Judge Hercules contains some of the following tools:

A. Black Letter & Case Law

Hercules accepts the basic law everyone else does, found in the Constitution, federal and state statutes and case law. He is not a legal rebel or a judge trying to legislate from the bench.

B. Community

Dworkin offers three levels of community. First is a community occurring by chance, who have nothing in common except as a "defacto accident of history." Second is the "rulebook" community which is committed to each other merely obeying all the same rules. The third is a community of principle, committed to one another via political standards the group aspires to. This is the highest level of group.

C. Moral Excellence

Judge Hercules must make his judgments based upon a moral understanding of the law. This means that he must study and understand the values of his community, and then represent them -- drawn from the intentional ethical standards of the people he judges.

D. Integrity

Dworkin's touchstone is "Integrity." Law as Integrity means doing "Constructive Interpretation." Propositions of law are true if they follow from principles of justice, fairness and procedural due process, giving the best insights into the community's legal practice.

IV. Judge Hercules Decides

Mosque Background Considerations

Dworkin explains the proper background for judging hard cases. He says,
Law as integrity asks judges to assume, so far as this is possible, that the law is structured by a coherent set of principles about justice and fairness and procedural due process, and it asks them to enforce these in the fresh cases that come before them, so that each person's situation is fair and just according to the same standards.
Please consider the following issues when judging this case...

A. Arguments Favoring the Ground-Zero Mosque

Constitution & Private Property Americans deeply revere constitutional protections for private property. Citizens have every right to use their own property as they see fit. No group should unduly inhibit the decision by private parties for arbitrary purposes. We also must make sure that if we do inhibit the use of private property, such as land, we do not damage its value, or undermine the 5th Amendment's "No person shall be... deprived of life, liberty, or property rights..." amongst other safeguards. Freedom of Religion Freedom of religion is perhaps America's most fervently held belief. We must use every possible means to increase the practice and enjoyment of this sacred right. No shackling of free worship should be allowed, and other restrictions on activities by religious groups must be closely monitored to keep from repressing this precious freedom. Bridge-Building In the interest of both harmony and greater understanding between diverse groups, we must encourage inter-religious ecumenism, being the further interaction between the world's religions. This will result in more harmony and peace, and less strife and war, and so this should be a top priority in America. Justice & Fairness & Due Process The bottom line for Judge Hercules is Law as Integrity, which means putting first Justice, Fairness, and Due Process in legal decisions. This should be especially true for alien groups because we as Americans must prove that we take our idea of fairness most seriously when it most inconveniences us. Harm of Blocking The argument for the mosque should include a claim that stopping the mosque would create a much worse harm than allowing it to be built.

B. Arguments Criticizing the Ground-Zero Mosque

Area History The history of the area of the Twin Towers makes it not just a mass murder and individually unmarked grave site but also a war memorial; which is of great import not just to New Yorkers, but to all Americans. Therefore, normal rules of development may not apply. City & Neighborhood Sentiments Persons who live in a neighborhood have a larger say in its development than any other group. Further, in this case, those killed at the site, survivors and their families have an outsized vote on future developments given the nature of the tragedy, and the cemetery content of the land. Outsiders Persons who were not established at the Ground Zero zone previous to the tragedy site might not get a preferred place at the table when it is rebuilt. Zoning Zoning is an appropriate means of creating the type of neighborhood the occupant's desire. While the direct rules are of note, how they have been applied to others is also important. For instance, in this case, was a 911 destroyed church being rebuilt blocked, while Mayor Bloomberg demands immediate approval of a Muslim shrine? Likely Impact The overall impact of a particular ruling is of great interest to Judge Hercules. He will do what he can to keep a bad result from happening. For example, if a strip club owner found a loophole in a town's zoning ordinances allowing him to buy cheap land between a Catholic seminary and a preschool, Hercules would want to know the likely impact of such a business on the local community.   Intent With such a nationally sensitive area as the Twin Towers site being rebuilt, it goes without saying that the persons being allowed to build there would be exhaustively background checked. In this case, what is the complete history of the intended mosque builder? How about that of his friends, financial backers, etc? Has he ever given support to radicals in any way? What might be his intentions? More generally, what is the history of his sect, and how do they tie into the 911 bombers? Or could the new site be used for the recruitment of others like them? Judge Hercules would get to the bottom of these questions before rendering any decision, and would be unsentimental in his ruling. Triumphalism Is there any chance the new mosque would be built, or seen as an Arc de Triomphe, as created by the ancient Romans to celebrate a war victory? Further, could this mosque act as a painful permanent block -- as does Islam's the Dome of the Rock -- which functionally stops any rebuilding of the Jewish Temple of Herod on Jerusalem's most sacred Temple Mount? Realistically, since this mosque is to be built on land leveled by the 911 Muslim terrorists, is there any way this structure will not be seen as a landmark of jihad against America by many world Muslims and America bashers? Might this not embolden future acts of terror inspired by our softness? Hercules would demand answers to this. Murder Inheritance Rule Being the careful and wise judge he is, Hercules would look for precedent of any kind to import into this situation. One of the legal standards he might consider affecting his ruling is the "murder inheritance rule" which forbids those who are due to inherit, to do so based on their murdering a wealthy relative. While this rule might not seem to apply, consider one could argue Imam Feisal Abdul Rauf's people are religious "relatives" of the sect that crashed the planes into the Twin Towers. Both American and Muslim law forbid gaining under such scenarios. That might affect his decision on the use of the former Burlington Coat Factory land. Locke Perhaps the most difficult issue to address would from US legal history involving Founder's role model and hero, philosopher John Locke. He originated many of the most advanced ideas behind American religious freedom. While Locke did much to champion religious freedom in the colonies, he was not in favor of allowing religions with violent and oppressive histories the same rights as peaceful ones. Might Hercules decide that Islam needs a probationary period in America before being given equal status? As astounding a thought as this might seem, the ever innovative Hercules could come to such an iconoclastic decision. How Foreign Islam Treats Other Religions Hercules might inquire into the native rules Islamic states use to process non-Muslim religions whenever they have hegemony in Muslim lands -- to see what their own sense of fairness might entail.

V. Analysis of the Ground-Zero Mosque by Hercules

This analysis will be brief not merely because of space limitations, but in order to encourage intelligent readers to enter into the judging process with Hercules themselves. While this writer cannot prove which side Hercules will decide for, Dworkin's "Right Answer" thesis encourages judges to take heart and believe that a right answer does exist to be found by intrepid, intelligent, hard-working and principled jurists. A guess as to a possible judicial decision by Judge Hercules... If the decision came down to two choices--Community versus Constitutional Rights, it would sum up perhaps the key issues involved.

Community of Ground Zero

Judge Hercules will be quite concerned with the impact of the mosque upon the victims' families, the overall city, the net impact upon the war victim shrine, and America's general sense of justice. He won't allow any decision that unduly whips up hatred for religion without a compelling reason. In analyzing this he will be quite curious about the intent of the would-be builders. Judging this will generally involve studying Islam in and out of America, Muslim beliefs and behavior, being gracious and yet circumspect in his conclusions. Hercules will investigate the background of the builders, and certain curious statements, such as the Imam claiming America has more blood on its hands than Al Qaeda, etc. Hercules will be deeply suspicious of any person attempting to build upon the 911 ground to create more peace, yet making critical comments about America. He will find puzzling the Imam's claims that a religion that demands judicial amputations, stonings and beheadings is really in agreement with American law. He will study whether the mosque might create more bad feelings than positive bridge-building. Judge Hercules will be especially puzzled by the Imam's wife, Daisy Kahn, and her angry insistence the mosque "must be built" where they want it. And that those who oppose this site are "islamophobic." He would like to know about her strangely aggrieved attitude, sense of entitlement, and fiery criticisms of America regarding our own holocaust ground. Hercules would want to know if such insensitive sentiments and a steely demand to get her way might not reveal the larger plan of this group, saying they will not back down from their intent to build the 13 story mosque 600 feet from the Twin Towers. So the question is--if so many oppose the idea, and there is no clear connection between the mosque's exact location, why not play nice and relocate it a few blocks away--is what Hercules will ask. Further, Judge Hercules will bear in mind the devastating impact of the shrine if it is misused, by triumphalism, proselytizing, or any non-peaceful proclamations, such as condemnations of America. Beyond this, Hercules might find unseemly the notion that Islam will benefit by using land cleared by the mass murder by Muslims for an Islamic religious proselytizing center.

Constitutional Rights of Muslims

A constitutional analysis will examine what harm will be done to the Imam and American Islam if the site were merely moved back from the scorched earth to occupy land not cleared by the bombers. He will question whether such property rights will be unduly damaged. Hercules will question himself and others on whether being farther back from the site will really harm their ability to practice their religion. But if they angrily insist it will--how so? This seems like an odd claim, and Judge Hercules will be sensitive to the notion that some subterfuge is at work in the mosque plans, and that the Imam's strange aggressiveness could be explained by ulterior motives. Constitutional interpretation must always invoke a theory of political morality, and a real-world sense of how to read other's intentions. One cannot claim Muslims are being treated unfairly in not allowing their mosque to be built if the Eastern Orthodox Church, which was previously located at the Twin Towers site, is also not allowed to be rebuilt. But one thing Hercules would not allow is forcing the mosque to be built based merely upon a singular and technical right to do so, outside of any other considerations of justice, morality and community. This he would term as a sterile positive law approach that ignores the values of the local community and felt justice in the search for legal integrity.

Conclusion

Ronald Dworkin writes about finding that singularly correct answer -- "Law is a seamless system with its own autonomy. It provides one correct answer to any cases, difficult or not, by application of its rules, precedents, principles and spirit." In his ruling, Judge Hercules will focus a few important elements. To foster community spirit, and avoid needless harm to others, the Imam should be mindful to heed Dworkin’s argument that individuals must take responsibility for their own group’s mistakes. And we detect here, coalescing, Judge Hercules' single best answer. It seems obvious that if the mosque were relocated a few blocks away as a compromise, that costs to the Muslims and Islam would be slight, overall. This would support Dworkin's emphasis on the Muslims being sensitive to the 911 community’s need to have its history honored, it's fallen acknowledged, and its pain not simply dismissed as irrelevant. Contra, the emotional price and cost in good-will of demanding to build the Ground Zero mosque on 911 burnt soil, despite a tidal wave of sincere objections, might well be catastrophic to what the Imam claims is the entire reason for the structure -- to create positive intercultural and religious connections with non-believers. Hercules' "constructive interpretation" of the 911 mosque will probably be that good neighbors do not behave with integrity when they seek for technical ways to force highly objectionable and insensitive decisions upon their neighbors, especially when costs of compromise are so small. He would not think this increases the scope of the "community of principle" -- which the Imam and Muslims claim they want to enter into with rest of America. Judge Hercules would not agree in the morality of such a contentious religious structure rising upon a mere constitutional right, yet opposed to every other common-sense rule of human ethics and justice.


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Kelly O'Connell -- Bio and Archives

Kelly O’Connell is an author and attorney. He was born on the West Coast, raised in Las Vegas, and matriculated from the University of Oregon. After laboring for the Reformed Church in Galway, Ireland, he returned to America and attended law school in Virginia, where he earned a JD and a Master’s degree in Government. He spent a stint working as a researcher and writer of academic articles at a Miami law school, focusing on ancient law and society. He has also been employed as a university Speech & Debate professor. He then returned West and worked as an assistant district attorney. Kelly is now is a private practitioner with a small law practice in New Mexico.


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