Weekend Edition: 5-9

Interesting Reading in the Interweb Tubes

  • Banning Books in the 21st Century (“Questions for the parents who want these books banned: Do your kids have cell phones? Access to the internet and social media? Video games? Cable television? If the answer is yes to any of those questions, then your kid is learning about the world already through less tasteful venues.”)

Blog Headline of the Week

Bookish Linkage

Nonbookish Linkage

To me bookstores are like brothels of imagination, each book is luring me over going, ‘Read me, read me.’

Ruby Wax

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Yielding our freedoms: The afterpiece

This series has focused on how actions by the South Dakota Council of Defense during World War I flouted both freedom of religion and freedom of speech. Yet it’s easy to have nearly 100 years of hindsight. I’m not denouncing everything the Council and its members did. They undoubtedly were doing what they thought best for the nation and the state at the time. The Council also took a variety of helpful actions.

For example, its first order regulated the price of seed corn. Ensuing ones regulated grain grading and testing and set a maximum wage for harvesting and threshing work. In addition, in light of “unjust, unreasonable and excess prices,” the Council issued an order setting the maximum net profit in producing and distributing ice, of all thing.

Other orders created a registration system for men between the ages of 16 and 21 and 31 and 65 who were unemployed or not employed in “necessary or useful” occupations so they could assist with food production. (“Capitalists,” insurance salesmen, stockbrokers and “fortune tellers, clairvoyants and palmists” were among the occupations specifically deemed as not necessary, useful. essential or productive.) Concern about idlers also led to the adoption of the “Pool Hall Resolution.” It urged local government to “take immediate steps to more stringently regulate, control, or, if need be, closed all places of loitering and loafing, whether the same be pool halls, places of card playing, or places of vice detrimental to public safety.”

The Council also thought it crucial to support Liberty Bond campaigns and volunteerism. Yet that also led to again intruding on civil liberties. For example, it issued a July 8, 1918, order made it a criminal offense to oppose, discourage, obstruct or interfere with Liberty Bond sales or other fundraising and volunteer requests related to the war. Moreover, including county councils, more than 2,200 “cases” were heard dealing with personal opinion. “The major portion of these hearings related to those abundantly able to take their apportionment of Liberty Bonds, but who refused to do so,” the Council reported. “Surprising discoveries were made. Men heretofore considered reputable citizens attempted to shirk their duty in helping their Country in its financing of a great war.” Except for a few “black spots,” the Council said “delinquents became better citizens” because of the hearings. As for the black spots, the identities of “those who remained obdurate in their position of indifference or opposition are a part of the records of this State, an heritage their children and neighbors will not soon forget, but will refer to with shame and regret.”

On December 19, 1918, the Council essentially ended. Gov. Peter Norbeck, also chair of the Council, issued a proclamation vacating its orders and regulations, terminating county councils of defense, and directing the Council to wrap up its activities and prepare a final report. According to the report, between May 8, 1917, and October 31, 1919, the Council spent $19,769.96 of the $20,000 appropriated it by the Legislature. Yet the book wasn’t entirely closed until the end of 1922, when the South Dakota Supreme Court issued its decision in the court proceedings against the Hutterite colonies.

Plainly, some of what the Council did was of benefit. Yet this series shows the lack of universal truth in the adage that all evil needs to triumph is for good men to do nothing. Sometimes it’s good men’s best-intentioned actions that violate our liberties. The Council of Defense just happens to be an example. And what’s sad isn’t that it occurred but that it was far from the first time and, as people like Edward Snowden have shown, we have infinite capacity to sacrifice our freedom for expedience.

Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent.

U.S. Supreme Court Justice Louis Brandeis,
dissenting in Olmstead v. United States (1928)

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Weekend Edition: 5-2

Interesting Reading in the Interweb Tubes

  • Object Lesson (“For many of us, our book collections are, in at least one major way, tantamount to our children—they are manifestations of our identity, embodiments of our selfhood; they are a dynamic interior heftily externalized, a sensibility, a worldview defined and objectified.”)
  • NSA Publishes Children’s Coloring Book (“That this is propaganda is so obvious it insults the intelligence of anyone with even a rudimentary understanding of what the NSA and propaganda are.”)

Maybe He Hates Loathes Lawyers

  • An man on trial for alleged attacking his lawyer during a jailhouse meeting attacked his new lawyer in the courtroom this week.

Bookish Linkage

Nonbookish Linkage

Books are not collections of paper, they’re invitations to different worlds. And being in a bookstore is like getting a passport.

Jon Acuff, “Why I Fell Back In Love With Bookstores

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Yielding our freedoms: Ending the Hutterite threat

Most of the posts in this series have focused on the activities of the South Dakota Council of Defense. But it had no inherent mechanism to enforce its legal authority. When “the Russian colonist problem” brought the Council in conflict with religious principles, it turned to the courts, often considered the last bastion for the protection of civil liberties. How would the scales of justice tip?

The Council’s “informal investigation” of four Hutterian Brethren religious corporations determined that their agricultural and related activities meant they were secular, not religious, entities. As a result, the Council filed lawsuits to dissolve and cancel their articles of incorporation. While the Council’s Executive Committee thought it “would be no loss” if the Hutterites left, it was concerned about the property the colonies owned. It filed lis pendens — a notice that any sale of the subject property would be affected by the outcome of a pending lawsuit — in counties where the Hutterites owned property. The Council offered to remove the lis pendens and allow a sale on certain conditions. Among other things, the colony had to invest 2½ % of the sale price in government securities, donate another one-half of one percent to the Red Cross, pay the Council’s costs and attorneys’ fees in the lawsuit, and agree to revocation and cancellation of its charter.

Undoubtedly prompted by mass migration to Canada, more than half the colonies took the offer. By the time the Council released its post-war report, three colonies in one corporation and one each from the other three sold their property. The sales resulted in $20,500 invested in Liberty Bonds and just over $4,000 in Red Cross donations (the equivalent of more than $320,000 and approximately $63,000 today, respectively). Three other colonies had sales pending. Yet some colonies kept up the fight, including the Hutterische Bruder Gemeinde (“Hutterite Brother Community”) in Bon Homme County.

After trial, Beadle County Circuit Court Judge Alva Taylor said the Hutterites “firmly adhere” to their religious precept of withholding all voluntary aid to the prosecution of any war “on the alleged ground that their duty to God is higher, in a moral sense, than their obligation to any human government.” He also found that the Hutterites believed they were pursuing their beliefs by living “a communistic life” and engaging in farming and similar pursuits. Still, in September 1919, Judge Taylor ruled that the corporation was “a misuser” of its charter because it engaged in “secular pursuits and business” and owned real property. He permanently enjoined it and its officers from engaging in secular pursuits. He gave them 90 days to sell all real estate not devoted to religious purposes and to amend the corporate by-laws to exclude any reference to secular business and submit the proposed amendments to him for approval. Otherwise, he would enter an order dissolving the corporation.

The Hutterian Brethren appealed to the South Dakota Supreme Court. In a per curiam (not identifying a specific author) opinion released on December 30, 1922, the Court acknowledged that any alleged law-breaking by the Hutterites

consists solely in a refusal to aid physically or financially in the carrying on of war. They are not shown to have engaged in any unlawful or immoral pursuits or occupations. It is not shown that they have ever harmed the state, society, or any human being, unless we assume that they harm themselves, their children, and the state by following the mode of living adopted by them, and which they believe to be in accordance with the teachings of the New Testament.

It also cited case law holding that the colonists’ refusal to support a war didn’t violate any state or federal law. Moreover, a religious corporation didn’t lose that status as long as any secular acts or transactions “are incident and subordinate to the religious purposes of the church, and so long as they are directed primarily to that purpose.”

So, it appears the Hutterites were freely exercising their religion under the First Amendment and believed any secular activities were in pursuit of their religious beliefs. Yet the Court ruled Hutterische Bruder Gemeinde should be dissolved. It said the corporation’s financial records “compel … the conclusion that the principal business of the corporation is secular, viz. the engaging in farming and other industrial pursuits for the purpose of the sustenance of its colonies; that next in order the business of the corporation is political, viz. the government of its members; and that lastly and secondarily the objects of the corporation are religious[.]” As a result, it should not have been chartered as a religious corporation at the outset. Only Justice Ellison G. Smith — who lost reelection in the general election the month before — dissented, convinced that the group was and always had been a religious corporation.

And the Supreme Court seemed to add insult to injury. It ruled in favor of the State’s cross-appeal of the trial court allowing Hutterische Bruder Gemeinde to remain in existence while disposing of its property. It said the corporation must transfer all of its property to trustees of an unincorporated organization, which would then dispose of it.

The decisions reflected political realities, even though they came after the war ended. Despite the recognized sincerity of the Hutterite beliefs, the scales were tipped against them. The colonists largely spoke German at a time when anything German was perceived as a threat. That was magnified by the Hutterites refusing to participate in the war or even but Liberty Bonds to help fund it. Finally, the Hutterite belief in common ownership was “communistic” as the first Red Scare and the Palmer Raids were commanding public attention. Ultimately, their religious principles were viewed as anti-democratic and anti-American views, something the times couldn’t tolerate.

Naturally the defendant colonies employed counsel and fought to escape the imposing of any restrictions upon their church[.]

Report of the South Dakota State Council of Defense

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Yielding our freedoms: The ‘Russian Colonist’ menace

One of the issues the South Dakota Council of Defense devoted “considerable time” to during its World War I existence was what it called the “Russian Colonist problem.” Evidently, these outsiders claimed their religious convictions forbid participating in or supporting a war. Given the U.S. was at war with Germany, though, the Council said such principles were “subversive” and a “menace to the state and nation.”

Who were the dastardly, treasonous Russian Colonists? According to the Council’s post-war report, it was 17 “so-called Mennonite societies,” mostly located in southeastern South Dakota. Actually, the colonies were part of the “Hutterische Brüder”(Hutterian Brethern), who first settled in South Dakota in 1874. Both Hutterites and Mennonites were Anabaptist sects. Nonviolence was a fundamental precept of the Hutterites, forbidding them from not only participating in military activities but also contributing to war taxes. Daivd Laskin’s The Long Way Home is one of a handful of books telling the story of four conscripted South Dakota Hutterites imprisoned in Alcatraz after refusing to wear uniforms or obey orders. Two were tortured and died. Their antiwar stance was perceived as such a threat that they were the subject of the Council’s second order, the first having set seed corn prices. (The breadth of this perception is reflected in what happened to four South Dakota Hutterites who were conscripted but refused to wear uniforms or obey orders. They were sentenced to 20 years in Alcatraz, where two died after being tortured.)

“Order No. 2″ allowed the Council’s Executive Committee to require anyone associated with the colonies to be examined under oath by it or a county defense council. They could be questioned about “any information within the[ir] knowledge” and required to produce any documents under their control. A formal complaint could initiate such proceedings or the Council could simply decide to start an investigation and order hearings. In either case, a resolution had to be adopted “specifying in general terms the nature of the investigation to be undertaken.” Failure to appear or otherwise comply with the order was punishable by up to a year in jail and/or a $1,000 fine. (Any subpoena to appear before the Council had to be issued by a court. In 1920, the South Dakota Supreme Court upheld a criminal contempt conviction of someone who refused to obey such a subpoena. The case dealt solely with failure to comply with a court’s subpoena, not the legality of the Council’s investigative or other powers.)

In explaining the order, the chair of the Executive Committee, wrote, “These people attracted attention by reason of their avowed hostility to all war activities.” Yet the next sentence recognized the Hutterite stance was “founded upon a fundamental principle of their doctrine, which opposes all war.” Despite that, the Executive Committee launched “an informal investigation” but it wasn’t prompted solely by Hutterite religious tenets.

Each colony was part of one of four Hutterian Brethren religious corporations formed under laws that predated statehood. Their articles of incorporation declared they were formed for the purpose of “promoting, engaging in and carrying on the Christian religion, Christian worship, and religious education and teachings” based on the principle that all property was owned in common. The problem, at least from the Defense Council’s standpoint, was that the activities listed included farming and agriculture and manufacturing articles from agricultural products. According to the Council, this made them secular, not religious, organizations. Moreover, some colonies had indicated they’d sell their property and move to Canada to avoid being forced to support the war. The Council thought it “unfair to permit these people, after prospering under the protection of our laws and government and accumulating vast wealth, simply to depart, taking their accumulated property with them, as soon as the government called for their assistance and support.” (Ultimately, a significant number of Hutterites moved to Alberta, Canada.)

The Executive Committee’s investigation looked into how the colonies operated, how they were governed and what property they owned. The chairman’s report on the examination of a number of the groups’ officers observed: “These people all speak German, although many of them also speak good English. They profess to be governed by the rules, regulations and doctrines embodied in a small volume printed in German and entitled: “Rechenschaft, Unsrer Religion, Lehrer und Glaubens von den Burdern die Mann die Huterischen Nennt.” The only testimony quoted in the report was that while the Hutterites followed the law of the land, they felt their religious beliefs regarding war took precedence over secular law. The Committee said its investigation “established … that these societies in fact had a government of their own, distinct from the laws of the land.” As a result, the Council brought lawsuits to dissolve the four corporations and cancel their articles of incorporation.

The lawsuits and how the Hutterites’ sincerely held religious beliefs fared in court are the subject of my next post.

[The Hutterian Brethren] were willing to take war prices for the products of their farms, they rejoiced in all the advantages offered in America for their prosperity, but they claimed an allegiance to their church doctrines as superior to and independent of any loyalty to the State or Nation.

Report of the South Dakota State Council of Defense

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Weekend Edition: 4-25

Interesting Reading in the Interweb Tubes

Legal Pleading of the Week

Dealing With the Dangers of Books

  • A Canadian school bus driver told an 8-year-old girl she could no longer read books on bus because it risked the safety of other students — and she might poke herself in the eye

Bookish Linkage

Nonbookish Linkage

If you ever reach total enlightenment while you’re drinking a beer, I bet it makes beer shoot out your nose.

Jack Handey, Deeper Thoughts, All New

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