The Jennings blog has moved!

As of October 1, 2011 the Jennings Project blog has moved and joined forces with Constitution Daily, the Center’s daily digest of smart conversation on the Constitution. All new posts will be published there, so be sure to subscribe and follow Constitution Daily on Twitter. If you are interested in submitting a post to Constitution Daily, please email Stefan Frank at

Thursday, September 9, 2010

What the Constitution Really Has to Say About the Ground Zero Mosque

As I listen to the debate on the Ground Zero mosque, engage friends and neighbors on the subject, and read editorials in what I hoped would be a more enlightened press, it is disturbing to see so much ignorance of, or indifference to, the Constitution and constitutional values.

Let's begin with the argument that the mosque must be allowed to be built because the First Amendment protects religious freedom. Yes, there is no doubt that the First Amendment protects the free exercise of religion – all religion -- and there should be no debate on whether the leaders of the mosque have the right to build it. They do. But so many, including Mayor Bloomberg of New York, think that the argument should end there. They see those who object to the mosque as hostile to the great American tradition of religious tolerance; indeed, I watched the Mayor on the Jon Stewart show a couple of weeks ago pompously pronouncing this fact to a rewarding round of applause. To which I can only react by asking, “just how much of the First Amendment, Mr. Mayor, have you read?”

There is indeed a great American tradition of religious tolerance. But in addition to protecting the free exercise of religion, the First Amendment also protects freedom of speech and there is just as much a right at stake here for those who use their freedom of speech to argue that building a mosque so close to Ground Zero is inappropriate. Mayor Bloomberg might say, well I don’t disparage the right of those who object to building the mosque; they can say whatever they want. But just as religious expression would be impotent if the state barred the building of places of worship, so speech would be impotent if we did not recognize its potential to seriously mix it up in the marketplace of ideas and, finally, to have the potential to force change.

Think about it this way: if the mosque-deniers should prevail; that is, if the outcry against the mosque should lead not to some legislative act barring it (that would truly breach the First Amendment) but to the mosque’s leaders deciding under the pressure that it would be best to relocate away from Ground Zero, we have to ask ourselves, have we failed the First Amendment's protection of religious exercise or have we witnessed the power of speech to make a difference? Understood for all its vitality, what the nation is going through here is a classic First Amendment exercise. A lesser document might prescribe precisely how this dilemma should be resolved. Instead, our Constitution – here, our First Amendment – carries with it the most tantalizing of contradictions. Not right against wrong, but right against right.

In point of fact, as long as the state is not the party making the decision to move the mosque, there is no First Amendment issue. Sure, you could argue back that while the state did not force the mosque to be moved, it nonetheless did not act to protect the rights of minorities either and that while the letter of the First Amendment may not have been violated, the spirit of the First Amendment – protecting minorities from overreaching majorities – was. But with such a robust discussion it is unclear, really, who is the minority here and I would say that a resolution that does not involve the state acting is exactly what the Founders had in mind when they created the First Amendment.

A few years ago, a group putting together a new Museum of Freedom for Ground Zero asked me to write a narrative history of freedom that could become the spine of their museum. I found it an interesting assignment but as I worked with the organizers, I witnessed the complex and interweaving emotions that attach now to this piece of real estate. The most vocal opponents to the museum, it turned out, were the families who had lost loved ones there on 9/11. They did not want the “resting place,” such as it is, of their kin to become a platform for political or religious argument or gain. At first, we felt that this was a sensitivity born of the freshness of the trauma, one we could overcome. But the feeling did not dissipate; it spread and as it did, it became apparent that the families were right. Dissecting the history of freedom at such a public place meant satisfying every conceivable constituency. Before we even began to think of where the first brick would be laid, we were besieged by various groups asserting that their message was the one that had to be told above all others. Two years after I left the Museum of Freedom’s organizers, I was not surprised to see that they folded under the pressures of the grieving families and despite my connections to the original idea, I had to agree that the museum was a bad idea. In a place of such national trauma, we don’t need more argument. We need peace.



  1. I understand your point -- the people opposing the Islamic Center are exercising their right to free speech. That's fine. But I don't understand how Mayor Bloomberg's argument in favor of religious tolerance in any way cuts against that right or expresses a misunderstanding of the Constitution. As far as I know, he hasn't banned opposition to the project. (as the rallies near the site make clear)

    And, you say "[w]e don't need argument," but your entire post is in defense of the very people who are starting the argument. The people building the Islamic Center did not start the fight. The people exercising their right to free speech are the ones who are preventing the "peace" you say we need.

  2. Todd replied...

    You are correct that Mayor Bloomberg has not banned opposition to the Islamic Center, but he still demonstrates an ignorance of the Constitution. As I think I make clear in the piece -- in fact, it is the central message of the piece -- free speech is meaningless if denied the power to force change. Yet if the mosque-deniers should win and -- through the force of public expression -- prompt the decision to locate it elsewhere Mayor Bloomberg has indicated that he would declare it a defeat for religious tolerance.

    As for who started the argument, well that is a sort of philosophical, chicken and egg thing, isn't it? Is it the act itself that prompts an argument or is the first person who objects to it? I don't think we can determine that without ending up in an endless spiral of precedents. If you examined my personal experience with the Museum of Freedom that I cite at the end of the piece, would argue that the families objecting to the Museum "started the argument"? I hope not. Yet that is directly parallel to the mosque controversy.

  3. Free speech is meaningless if denied the power to force change? That cannot possibly be true. If it was, we would be rendering free speech meaningless every time we didn't change our policies in response to opposition. For example, should we support a shutdown of Planned Parenthood if there are anti-abortion activists protesting it? If we don't, is free speech meaningless? No.

    You are arguing that Mayor Bloomberg doesn't respect free speech unless he agrees with the outcome of this dispute. But he is using his own right to free expression by saying it would be a defeat for religious tolerance if the center is moved. His disagreement with the "mosque-deniers" is exactly what free speech is about.

  4. Todd -

    I wholeheartedly disagree with what you have written in your piece and in your response to the comment.

    First, you have cited absolutely zero facts in support of the conclusion that Mayor Bloomberg somehow demonstrates "ignorance of the Constitution." In fact, it is you who demonstrates ignorance of the Constitution when you say, "But just as religious expression would be impotent if the state barred the building of places of worship, so speech would be impotent if we did not recognize its potential to seriously mix it up in the marketplace of ideas and, finally, to have the potential to force change."

    That is a completely nonsensical statement. You compare the government barring the building of place of worship with not recognizing speech's "potential to seriously mix it up in the marketplace of ideas and, finally, to have the potential to force change." I encourage you to read the First Amendment again. It states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

    Nowhere in the First Amendment (or in First Amendment jurispudence) do we find some sort of requirement that we recognize the power of speech to effect change. Of course, that is the very essence of free expression, but so is Mayor Bloomberg's expressed support of the Park51 project and his dismissal of those who oppose the project. Just like Park51 has a right to build a community center and house of worship in lower Manhattan, the protesters have a right to protest, and Mayor Bloomberg has a right to say they are wrong. None of that demonstrates and ignorance of the Constitution.

    And, as you state, "as long as the state is not the party making the decision to move the mosque, there is no First Amendment issue." Similarly, as long as the state doesn't try to prevent those opposed to the Park51 project from expressing their views, which the state has not done, there is also no First Amendment issue (or ignorance). Mayor Bloomberg did not try to prevent the racially-charged, Islamophobic demonstration against the Park51 project in lower Manhattan a couple of weeks ago, because he recognizes the right of those opposed to the project to speak out against it.

    I also must take issue with your use of the term "Ground Zero Mosque," which is a loaded term created by those oppose to the project. It is neither a mosque, nor is it at Ground Zero.

    Finally, let's get to the heart of the matter. Why are people opposed to this project? Because it's a "mosque" where Muslims will gather. And because radical Muslims extremists flew planes into the World Trade Center, a couple of blocks from the site, and because the opponents associate all Muslims with the act of a few radicals. That is an entirely unfair and prejudiced view of who the backers of the Park51 project are, and who will use the proposed community center.

    What you are asking is for people who lawfully own the land, and who have been granted permission by the zoning board, to give up their rights because of bigotry and guilt by association. I exercise my First Amendment right to say that you couldn't be more wrong.

  5. In addition, as for who started the argument, those opposed to the project clearly started it. Imam Feisal's wife, Daisy Kahn appeared on Fox News in December 2009 and discussed the project with Laura Ingraham, and Ingraham stated, in regards to the Park51 project "I can’t find many people who really have a problem with it." And at the end of the interview she said, "I like what you’re trying to do." Subsequently, there wasn't a story about the project for nearly six months. Then, noted anti-Muslim, right-wing activist Pam Geller latched onto the story, tagged it the "Ground Zero Mosque," political opportunists and charlatans jumped on the story, and off we went, into the abyss.

    To say that the opponents of the project started the argument is hardly a "chicken and the egg" issue, it's a simple fact. Your argument is like saying a black family started a fight with the Klu Klux Klan by moving into the neighborhood, and in order to avoid an argument with the Klan, they should have moved elsewhere.

  6. I find it deeply ironic that my comments to a blog post that advocates for the "marketplace of ideas" would be censored. I will not be visiting or commenting on this blog again.

  7. Thanks to both Sarah and Bill for their thoughtful comments and Bill, as you can see, the comments have been posted and there was never any thought that they would not be. They are simply not posted immediately; not until the webmaster can examine them purely for the purpose of preventing the use of personal smears, etc.

    Now, to the substance. I will be brief. Yes, the First Amendment has simple and broad language and does not say anything directly about the fact that the speech right would be impotent if not given the potential to force change. And Sarah, yes, in your example of the speech of protesters outside an abortion clinic you ask if Planned Parenthood must be shut down because of the protests and if it is not, is the speech impotent? Of course, it is not. Indeed, I think you are correct, to analyze specific instances of speech in that manner or the loudest and most insistent voices wold always prevail. But I am writing about the speech right itself which, to me, is impotent if we declare at the outset that no manner of the demonstration of public outcry can ever have an impact on a decision such as this one. The power to say what you want is meaningless of it is denied the potential for impact. And so this is where I object to Mayor Bloomberg saying that if the mosque -- call it a Park51 or an Islamic Center, if you wish -- is relocated by its leaders elsewhere it is a defeat for the First Amendment. I think you cannot find one right in the First Amendment to be superior to another right.