RE: The President and the Pope
Suppose President Bush bribes a few legislators in order to get the last votes necessary to pass a constitutional amendment limiting marriage to one man and one woman. Could he defend his actions by pointing out that Seward may have used briberty to procure the last crucial votes necessary to get the 13th Amendment out of Congress. 1. A certain kind of Formalism. Bush and Seward stand and fall together. If the one can use bribery, the other can. 2. The issue matters. Bribery is justified only for particularly overwhelming causes. History is the ultimate justice. We think Seward behaved correctly because we think slavery a sufficient evil as to justify some bribery to procure abolition. Whether Bush would be right to bribe depends on what you think of his stance on cultural issues. 3. Sincerity matters. Seward was right because he was committed to abolition. Whether Bush is right depends on whether you think he is truly passionate about one man/one woman marriage, or whether he is hoping to gain votes on cultural issues to help the tax cuts, etc. Of course, the claim that persons may violate certain norms in great causes seemingly privileges extremists, who think they have a monopoly on rectitude. But there is also a sense in which the law of self-defense will inspire more paranoids. At bottom, whether Bush (or a claim of self-defense) is justified depends on whether we think the cause was great enough and whether he sincerely thought the cause was great enough. Mark A. Graber ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Justice Thomas in Newdow
Dear all, I apologize in advance, if I missed the list's discussion of Justice Thomas's views regarding the incorporation of the Establishment Clause. For what it's worth, I've been surprised by the vigor with which several prominent scholars have disapproved these views. Jack Balkin remarked, for example (www.balkin.blogspot.com), [n]ow we know what it would be like to have Judge Roy Moore on the Supreme Court. Brian Leiter concludes that Justice Thomas has solidif[ied[ his status on the lunatic fringe (http://webapp.utexas.edu/blogs/archives/bleiter/001452.html). And Doug Laycock states that Thomas's is a pretty astonishing view. . . . He acts as though the Civil War didn't happen, or it didn't matter (http://www.latimes.com/la-na-thomas17jun17,1,3892729.story). It strikes me, though, that Thomas's observations, in Part II-A of his opinion, are not particularly astonishing, and certainly do nothing to put him on the lunatic fringe. Does he say anything, in that Part of the opinion, that Steve Smith, Philip Hamburger, Gerry Bradley, Akhil Amar, and many others have not also said, namely, that the point of the Establishment Clause was to protect the States' then-existing establishments and perhaps also, more generally, to leave questions of church-state relations to the States? And, with all due respect to Professor Laycock, I'm not sure it is fair to conclude that, because Justice Thomas agrees with those who believe that the Establishment Clause is particularly, and perhaps uniquely, unsuited for incorporation via the 14th Amendment (but see, e.g., Kurt Lash), he is therefore unmindful of the (obvious) sweeping changes that the post-Civil War Amendments worked in the constitutional law of individual rights. (Recall, for example, his passionate concurrence in Zelman). Now, I'm inclined to think that, merits aside, the matter is water under the bridge, and that Justice Thomas's views on this question -- like his views on the scope of the Commerce Clause -- are not likely to become governing constitutional law. As Michael Perry likes to put it, the incorporation of the Establishment Clause has become bedrock. Still, is there a reason why we should not concede that he is -- or, at least, MAY be -- correct? Best, Rick Garnett At 04:26 AM 6/11/2004 -0500, you wrote: Eugene, I agree that very global quid pro quo theories -- like broad Establishment Clause, broad Free Exercise Clause -- do not spread their benefits to all religions equally. (For example, I think that broad establishment clause, broad free exercise tends to protect or benefit minority or outsider religions, although I'd qualify that statement in some important ways. I'm thinking about this now because I'm writing a piece about minority religions.) But more specific quid pro quo arguments, it seems to me, can rest on real connections. For example: Because public schools cannot include religious teaching in their curriculum, there should be special concern to protect religious private schools and families' ability to use them if they conscientiously wish to have religoius instruction in their children's education. That connection is still not perfect -- not all families who want religious instruction in education will belong to a denomination that operates religious schools -- but the connection is real because there are indeed many families who make such a choice between public education and private religious schools. As for more global quid pro quo notions: although of course there are many, many religious views, nevertheless there is a general category called religion that is singled out for distinctive treatment in the Constitution and therefore may require distinctive treatment by government actors. Even if a general quid pro quo approach doesn't benefit all faiths equally, it seems to me that it can have the advantage of setting forth an approach that doesn't treat religious activity just the same as every other activity, but is principled in the ways it departs from that sameness treatment. For example, the Lee v. Weisman passage -- preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission -- gives a principled (though certainly disputable) reason for treating religious activities distinctively in various legal situations. When someone asks, for example, Why should there be exemptions from law just for religious conduct?, a possible answer is, It's part of this overall approach to religion that is sensible and justifiable, for [X] reasons. I think that the fact that one can point to other places where religion is treated differently helps make the overall approach more sensible and justifiable (though, of course, still open to dispute). Tom Berg _ From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Wed 6/9/2004 11:29 PM To: Law Religion issues for Law
Re: Justice Thomas in Newdow
bedrock. Still, is there a reason why we should not concede that he is -- or, at least, MAY be -- correct? Best, Rick Garnett The Civil War Amendments rewrote the Constitution. People are entitled to protection against establishment period. Limiting the states is what happened with our second Constitution. Broadening the federal power happened then and again with our third Constitution (New Deal-Warren Court). While an academic may be excused for pondering parallel universes in writing, a Supreme Court Justice who does so in writing (as opposed to raising a point for discussion with law clerks and other judges) is perhaps not at the lunatic fringe, but is at at the very least near it. What we may toss around as ideas on our listserve or in our classes or in person or even in serious scholarship is different from published opinions of the court. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar Lay not up for yourselves treasures upon earth, where moth and rust doth corrupt, and where thieves break through and steal; but lay up for yourselves treasures in heaven, where neither moth nor rust doth corrupt, and where thieves do not break through nor steal. For where your treasure is, there will your heart be also. Matthew 6:19-21 ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Justice Thomas in Newdow
The LA Times story is available on Westlaw for those who would like to read it without giving their phone number and income to the LA Times. Expletives deleted. Obviously the way you would explain what is wrong with Thomas's opinion on this list is different from how you would capsulize it in a sentence or two (selected by the reporter) for an explanation to the public. But I do think that Thomas's opinion is both extreme and wrong. He did not say merely that the clause does not apply against the states. He also said that the clause creates no individual rights. The only apparent application of this second pronouncement is that it creates no individual rights against the federal government either. So every Establishment Clause case the Court has ever decided would be obliterated at a stroke. He seems to assume that the free exercise clause would prevent coerced attendance at religious services -- unless, we have to assume, the service is rather short and is incorporated into some other official event that people attend for secular reasons. I do not doubt that one meaning of the Clause in 1791 was that the federal government could not interfere with establishments in the states. But I am equally sure that one meaning of the Clause in 1791 was that the federal government could take no steps toward a federal establishment of religion -- not in the states, and not in the federal district either. Either a federal establishment or a federal interference with a state establishment would be a law respecting an establishment. The debate in the First Congress did not focus on the federalism implications. It focused on the meaning of establishment, and on how far the federal government should be restricted. The argument for prohibiting only preferential aid to favored denominations was rejected; the most broadly worded draft proposed was adopted. This of course goes to the debate over nonpreferentialism; but even before that, it goes to whether this Clause was only about federalism, or also about the proper relationship between religion and government. The debate was plainly about the latter; I think the federalism-only interpretation is demonstrably wrong. I'm not sure the federalism principle that can be derived from the verb respecting and the existence of state establishments is much different from the federalism principle that is implicit in the constitutional structure about other individual rights good only against the federal government. Certainly the federal government in 1791 had no general power to protect individual liberties against state restrictions on free speech (blasphemy, defamation, perhaps others) or free exercise (voting confined to Christians, or to Protestants; the Lousiana law on Catholic funerals that got to the Supreme Court in 1845 and produced a repeat of Barron v. Baltimore); or any other individual right. Any attempt to incorporate implicit and explicit rules that the federal government could not interfere with state restrictions on liberty would indeed lead to nonsense. What is incorporated is the protection for individual liberty in each constitutional right. The states cannot do to citizens what the feds could not do to citizens. The restrictions on government sponsorship of religion play an essential role in protecting the religious liberty of individuals; I am entirely comfortable concluding that those restrictions are a privilege or immunity of citizens of the United States, just like the restrictions on government interference with free speech or free exercise. I understand the argument that the Establishment Clause doesn't speak to what government can do to individuals in the same way as the other provisions of the Bill of Rights, but I think that badly underestimates the role of the Establishment Clause in protecting individual liberty. At 02:25 PM 6/17/2004 -0500, you wrote: Dear all, I apologize in advance, if I missed the list's discussion of Justice Thomas's views regarding the incorporation of the Establishment Clause. For what it's worth, I've been surprised by the vigor with which several prominent scholars have disapproved these views. Jack Balkin remarked, for example (www.balkin.blogspot.com), [n]ow we know what it would be like to have Judge Roy Moore on the Supreme Court. Brian Leiter concludes that Justice Thomas has solidif[ied[ his status on the lunatic fringe (http://webapp.utexas.edu/blogs/archives/bleiter/001452.html). And Doug Laycock states that Thomas's is a pretty astonishing view. . . . He acts as though the Civil War didn't happen, or it didn't matter (http://www.latimes.com/la-na-thomas17jun17,1,3892729.story). It strikes me, though, that Thomas's observations, in Part II-A of his opinion, are not particularly astonishing, and certainly do nothing to put him on the lunatic fringe. Does he say anything, in
Symposium on State Blaine Amendments
I hope it is permissible to post this on the list-serve. I do so in my capacity as faculty advisor to the Tulsa Law Review. -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] TULSA LAW REVIEW CALL FOR SYMPOSIUM CONTRIBUTIONS Blaine Amendments Tulsa Law Review seeks contributions for its Winter 2004 issue dedicated to an off-site paper symposium discussing state Blaine Amendments and Blaine-like provisions. This discussion will be facilitated by the United States Supreme Courts decision in Locke v. Davey. TLR seeks contributions of all typesincluding both articles and essaysfor inclusion in the symposium issue. Editing is expected to begin approximately September 13, 2004. TLR has provided a modest stipend for participation in past symposia and expects to be able to continue this practice. Space in the symposium issue is limited. Interested authors are encouraged to contact TLR soon to reserve a place in the issue. Once the anticipated editing capacity has been reached, the issue must be closed. For more information about the symposium issue or TLRs editing process, or to reserve a place in the symposium issue, please contact: Dan Carsey, Editor-in-Chief Tulsa Law Review 3120 E. Fourth Place Tulsa, OK 74104 Phone: 918-631-3532 Email: [EMAIL PROTECTED] - ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: Justice Thomas in Newdow
Isn't it the case that whether Thomas is correct or not depends in part on whether only the text of the constitution (or the text and original intent) is a relevant datum or whether accumulated cases law also counts as constitutional law. On the text only vision of constitutional law, Thomas has at least something to say, even if I think, with Doug, that he is wrong; on the latter view, his opinion in the pledge case is simply an anomaly. Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Thursday, June 17, 2004 4:21 PM To: Law Religion issues for Law Academics Subject: Re: Justice Thomas in Newdow The LA Times story is available on Westlaw for those who would like to read it without giving their phone number and income to the LA Times. Expletives deleted. Obviously the way you would explain what is wrong with Thomas's opinion on this list is different from how you would capsulize it in a sentence or two (selected by the reporter) for an explanation to the public. But I do think that Thomas's opinion is both extreme and wrong. He did not say merely that the clause does not apply against the states. He also said that the clause creates no individual rights. The only apparent application of this second pronouncement is that it creates no individual rights against the federal government either. So every Establishment Clause case the Court has ever decided would be obliterated at a stroke. He seems to assume that the free exercise clause would prevent coerced attendance at religious services -- unless, we have to assume, the service is rather short and is incorporated into some other official event that people attend for secular reasons. I do not doubt that one meaning of the Clause in 1791 was that the federal government could not interfere with establishments in the states. But I am equally sure that one meaning of the Clause in 1791 was that the federal government could take no steps toward a federal establishment of religion -- not in the states, and not in the federal district either. Either a federal establishment or a federal interference with a state establishment would be a law respecting an establishment. The debate in the First Congress did not focus on the federalism implications. It focused on the meaning of establishment, and on how far the federal government should be restricted. The argument for prohibiting only preferential aid to favored denominations was rejected; the most broadly worded draft proposed was adopted. This of course goes to the debate over nonpreferentialism; but even before that, it goes to whether this Clause was only about federalism, or also about the proper relationship between religion and government. The debate was plainly about the latter; I think the federalism-only interpretation is demonstrably wrong. I'm not sure the federalism principle that can be derived from the verb respecting and the existence of state establishments is much different from the federalism principle that is implicit in the constitutional structure about other individual rights good only against the federal government. Certainly the federal government in 1791 had no general power to protect individual liberties against state restrictions on free speech (blasphemy, defamation, perhaps others) or free exercise (voting confined to Christians, or to Protestants; the Lousiana law on Catholic funerals that got to the Supreme Court in 1845 and produced a repeat of Barron v. Baltimore); or any other individual right. Any attempt to incorporate implicit and explicit rules that the federal government could not interfere with state restrictions on liberty would indeed lead to nonsense. What is incorporated is the protection for individual liberty in each constitutional right. The states cannot do to citizens what the feds could not do to citizens. The restrictions on government sponsorship of religion play an essential role in protecting the religious liberty of individuals; I am entirely comfortable concluding that those restrictions are a privilege or immunity of citizens of the United States, just like the restrictions on government interference with free speech or free exercise. I understand the argument that the Establishment Clause doesn't speak to what government can do to individuals in the same way as the other provisions of the Bill of Rights, but I think that badly underestimates the role of the Establishment Clause in protecting individual liberty. At 02:25 PM 6/17/2004 -0500, you wrote: Dear all, I apologize in advance, if I missed the list's discussion of Justice Thomas's views regarding the incorporation of the Establishment Clause. For what it's worth, I've been surprised by the vigor with which several prominent scholars have disapproved these views. Jack Balkin remarked,
Re: Justice Thomas in Newdow
I don't think Thomas disbelieves that incorporation has occurred (or happened), and that has included the establishment clause. I think he is questioning whether it is justified. After all, in the same 1940s in which Everson came down the pike so did the Japanese internment case. I don't think anyone would accept as a justification of the latter the citation of historical fact: broadening the federal power, including interning the Japanese, happenend again with our third Constituiton (New Deal-Warren Court. Yes, it happened. But was it justified? I think there is another way to understand Thomas that is consistent with establishment applied to the states but without incorporating the Establishment Clause. (I just read through his opinion in Newdow very quickly; so I may be reading him wrong on this). Thomas seems to be saying that state disestablishment can be gotten through the free exercise clause, which can be interpreted to mean that state power to curtail free exercise is prima facie unjustified. This would mean that really egregious cases of establishment--e.g., assessments that tax everyone to support a particular church, indoctrinating students in public school classrooms, etc.--violate free exercise. However, the Pledge of Allegience--from which kids can opt out--violates no one's free exercise. It does, of course, put the state in a position of claiming that the nation is under God. But one could give a separationist account of this by arguing that since the writer of the Danbury Letter (the sacred text of separationism, so to speak), Jefferson, affirmed in the Declaration that our rights, including religious liberty, are endowed to us by our Creator, apparently he saw no inconsistency in maintaining both beliefs simultaneously. In this sense, we are under God. Frank On 6/17/04 3:48 PM, Steven Jamar [EMAIL PROTECTED] wrote: bedrock. Still, is there a reason why we should not concede that he is -- or, at least, MAY be -- correct? Best, Rick Garnett The Civil War Amendments rewrote the Constitution. People are entitled to protection against establishment period. Limiting the states is what happened with our second Constitution. Broadening the federal power happened then and again with our third Constitution (New Deal-Warren Court). While an academic may be excused for pondering parallel universes in writing, a Supreme Court Justice who does so in writing (as opposed to raising a point for discussion with law clerks and other judges) is perhaps not at the lunatic fringe, but is at at the very least near it. What we may toss around as ideas on our listserve or in our classes or in person or even in serious scholarship is different from published opinions of the court. Steve ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: Justice Thomas in Newdow
It seems to me that Justice Thomas's position -- or for that matter, the Chief's similar position in Wallace v. Jaffree in the mid-1980s -- is eminently credible. The case for the Establishment Clause not being incorporated is at least as strong, it seems to me, as the case for the Grand Jury Presement Clause not being incorporated or the Seventh Amendment not being incorporated. It's true that there is indeed accumulated caselaw to the contrary, and it surely counts as constitutional law. But calling for the reversal even of longstanding precedents also counts as a legitimate constitutional argument -- in fact, that's how the process of incorporation itself has often proceeded as to other Amendments. Finally, I think Doug has a good point that the Establishment Clause may well be seen as an important protection of individual liberty. But that strikes me as far from an open-and-shut obvious point. So on balance, Justice Thomas's position -- and the position of scholars who have made similar arguments -- seems to me to be eminently credible, and hardly deserving of the harsh condemnation that Rick Garnett has quoted, even if one ultimately disagrees with Thomas (whether on originalist grounds or because one thinks that something else, such as precedent, should count more than original meaning). Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of marc stern Sent: Thursday, June 17, 2004 2:28 PM To: 'Law Religion issues for Law Academics' Subject: RE: Justice Thomas in Newdow Isn't it the case that whether Thomas is correct or not depends in part on whether only the text of the constitution (or the text and original intent) is a relevant datum or whether accumulated cases law also counts as constitutional law. On the text only vision of constitutional law, Thomas has at least something to say, even if I think, with Doug, that he is wrong; on the latter view, his opinion in the pledge case is simply an anomaly. Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Thursday, June 17, 2004 4:21 PM To: Law Religion issues for Law Academics Subject: Re: Justice Thomas in Newdow The LA Times story is available on Westlaw for those who would like to read it without giving their phone number and income to the LA Times. Expletives deleted. Obviously the way you would explain what is wrong with Thomas's opinion on this list is different from how you would capsulize it in a sentence or two (selected by the reporter) for an explanation to the public. But I do think that Thomas's opinion is both extreme and wrong. He did not say merely that the clause does not apply against the states. He also said that the clause creates no individual rights. The only apparent application of this second pronouncement is that it creates no individual rights against the federal government either. So every Establishment Clause case the Court has ever decided would be obliterated at a stroke. He seems to assume that the free exercise clause would prevent coerced attendance at religious services -- unless, we have to assume, the service is rather short and is incorporated into some other official event that people attend for secular reasons. I do not doubt that one meaning of the Clause in 1791 was that the federal government could not interfere with establishments in the states. But I am equally sure that one meaning of the Clause in 1791 was that the federal government could take no steps toward a federal establishment of religion -- not in the states, and not in the federal district either. Either a federal establishment or a federal interference with a state establishment would be a law respecting an establishment. The debate in the First Congress did not focus on the federalism implications. It focused on the meaning of establishment, and on how far the federal government should be restricted. The argument for prohibiting only preferential aid to favored denominations was rejected; the most broadly worded draft proposed was adopted. This of course goes to the debate over nonpreferentialism; but even before that, it goes to whether this Clause was only about federalism, or also about the proper relationship between religion and government. The debate was plainly about the latter; I think the federalism-only interpretation is demonstrably wrong. I'm not sure the federalism principle that can be derived from the verb respecting and the existence of state establishments is much different from the federalism principle that is implicit in the constitutional structure about other individual rights good only against the federal government. Certainly the federal
RE: Justice Thomas in Newdow
So its ok for the New Deal-Warren Court to re-write the Constitution to its pleasure, but somehow lunatic fringe for Justice Thomas even to ask the question what the Constitution as written and ratified actually meant? Seems to me that the oath of office for him (and indeed every other officer in government) is to the Constitution, not what the Court said about it in dicta in 1947, particularly when the dictum was verifiably wrong. Verifiable--else how can you explain the efforts to pass the Blaine Amendment, an effort that would not have been necessary had the 14th Amendment already accomplished what you think is so obvious that no discussion about it ever grace the pages of the U.S. Reports. And I dont' see how state support of religion is any more an infringement on the liberty protected by the 14th Amendment than state indoctrination in public schools, or via the slanderous anti-tobacco ad campaigns that have run throughout the nation, etc. No one is compelled to adhere to a particular faith--that's the line between free exercise and establishment as originally understood. The non-interference aspect of the First Amendment is a close call, but I think the stronger original understanding, and there is certainly nothing in the 14th Amendment's drafting or ratification history even to suggest, much less to dispositively determine, that the 14th Amendment was designed to confer on the Federal Courts the very power prohibited to Congress by the Establishment Clause itself. The 14th Amendment wrought a monumental change in federal-state relations, to be sure, but that was not among them--at least, not on any evidence I have seen. John Eastman Chapman Law School From: [EMAIL PROTECTED] on behalf of Steven Jamar Sent: Thu 6/17/2004 1:48 PM To: Law Religion issues for Law Academics Subject: Re: Justice Thomas in Newdow bedrock. Still, is there a reason why we should not concede that he is -- or, at least, MAY be -- correct? Best, Rick Garnett The Civil War Amendments rewrote the Constitution. People are entitled to protection against establishment period. Limiting the states is what happened with our second Constitution. Broadening the federal power happened then and again with our third Constitution (New Deal-Warren Court). While an academic may be excused for pondering parallel universes in writing, a Supreme Court Justice who does so in writing (as opposed to raising a point for discussion with law clerks and other judges) is perhaps not at the lunatic fringe, but is at at the very least near it. What we may toss around as ideas on our listserve or in our classes or in person or even in serious scholarship is different from published opinions of the court. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar Lay not up for yourselves treasures upon earth, where moth and rust doth corrupt, and where thieves break through and steal; but lay up for yourselves treasures in heaven, where neither moth nor rust doth corrupt, and where thieves do not break through nor steal. For where your treasure is, there will your heart be also. Matthew 6:19-21 ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw winmail.dat___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: Justice Thomas in Newdow
I was surprised by Justice Thomas's statements suggesting that it is not entirely clear that the Establishment Clause prohibits Congress from establishing a national religion. See his opinion at p. 6 (saying only that the Est. Clause probably does so as a textual matter) and p. 7 (But even assuming ...). Is this a slip of the pen, or does Justice Thomas really entertain doubt whether the original meaning of the Establishment Clause included such a prohibition? Mark S. Scarberry Pepperdine University School of Law -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Thursday, June 17, 2004 2:54 PM To: Law Religion issues for Law Academics Subject: RE: Justice Thomas in Newdow It seems to me that Justice Thomas's position -- or for that matter, the Chief's similar position in Wallace v. Jaffree in the mid-1980s -- is eminently credible. The case for the Establishment Clause not being incorporated is at least as strong, it seems to me, as the case for the Grand Jury Presement Clause not being incorporated or the Seventh Amendment not being incorporated. It's true that there is indeed accumulated caselaw to the contrary, and it surely counts as constitutional law. But calling for the reversal even of longstanding precedents also counts as a legitimate constitutional argument -- in fact, that's how the process of incorporation itself has often proceeded as to other Amendments. Finally, I think Doug has a good point that the Establishment Clause may well be seen as an important protection of individual liberty. But that strikes me as far from an open-and-shut obvious point. So on balance, Justice Thomas's position -- and the position of scholars who have made similar arguments -- seems to me to be eminently credible, and hardly deserving of the harsh condemnation that Rick Garnett has quoted, even if one ultimately disagrees with Thomas (whether on originalist grounds or because one thinks that something else, such as precedent, should count more than original meaning). Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of marc stern Sent: Thursday, June 17, 2004 2:28 PM To: 'Law Religion issues for Law Academics' Subject: RE: Justice Thomas in Newdow Isn't it the case that whether Thomas is correct or not depends in part on whether only the text of the constitution (or the text and original intent) is a relevant datum or whether accumulated cases law also counts as constitutional law. On the text only vision of constitutional law, Thomas has at least something to say, even if I think, with Doug, that he is wrong; on the latter view, his opinion in the pledge case is simply an anomaly. Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Thursday, June 17, 2004 4:21 PM To: Law Religion issues for Law Academics Subject: Re: Justice Thomas in Newdow The LA Times story is available on Westlaw for those who would like to read it without giving their phone number and income to the LA Times. Expletives deleted. Obviously the way you would explain what is wrong with Thomas's opinion on this list is different from how you would capsulize it in a sentence or two (selected by the reporter) for an explanation to the public. But I do think that Thomas's opinion is both extreme and wrong. He did not say merely that the clause does not apply against the states. He also said that the clause creates no individual rights. The only apparent application of this second pronouncement is that it creates no individual rights against the federal government either. So every Establishment Clause case the Court has ever decided would be obliterated at a stroke. He seems to assume that the free exercise clause would prevent coerced attendance at religious services -- unless, we have to assume, the service is rather short and is incorporated into some other official event that people attend for secular reasons. I do not doubt that one meaning of the Clause in 1791 was that the federal government could not interfere with establishments in the states. But I am equally sure that one meaning of the Clause in 1791 was that the federal government could take no steps toward a federal establishment of religion -- not in the states, and not in the federal district either. Either a federal establishment or a federal interference with a state establishment would be a law respecting an establishment. The debate in the First Congress did not focus on the federalism implications. It focused on the meaning of establishment, and on how far the federal government should be restricted. The argument for prohibiting only preferential aid to favored denominations was rejected; the most
Re: RE: Justice Thomas in Newdow
Doug Laycock is right to suggest that the federalism case for the establishment clause is at least as strong in regard to other rights listed in the Bill. For example, when Congress passed the alien and sedition acts, Madison argued that the acts, among other things, violated the rights of the states. His point was a simple one of linking the first and tenth amendments--the powers not delegated to the federal government (like the power to regulate speech) nor prohibited to the states, are reserved to the states respectively or to the people. And, in fact, he cited the Tenth Amendment in his Report on the Acts. But the Establishment Clause nevertheless remains unique even among the rest of the Bill of Rights. When Madison (unsuccessfully) proposed an amendment that would apply important first amendment rights against the states, he included a version of the free exercise clause, but he left out the establishment clause. Apparently Madison believed there was a difference between the two clauses and he sought to apply only one--the free exercise clause--against the states. Whatever Madison's reasons for doing so, I believe that most scholars would agree that, in 1791, there was deep disagreement about the value of state religious establishments. It is quite likely that many founders simultaneously believed that federal establishments were bad but state establishments were very important. I don't think any historian working on this period would disagree. But unlike John, I believe that a broad majority of the country came to embrace the principle of non-establishment in the period between 1791 and 1868. I agree with Doug that, by Reconstruction, privileges or immunities of US citizens were understood to include the right to non-establishment. John raises the issue of the Blaine amendment, and he and I have discussed that Amendment in other forums. Suffice to say that I think the Blaine Amendment is evidence which SUPPORTS the idea the P or I's included the principle of non-establishment. But my and John's disagreement is wholly irrelevant to the Supreme Court. The Court has steadfastly refused to consider Reconstruction understandings in its interpretation of the Bill of Rights in general and the religion clauses in particular. Instead, there has been a continuous, and hopeless, debate over the original meaning of the establishment clause. One can hardly fault Justice Thomas for joining the debate on the Court's own terms. Unfortunately, as Steve Smith might say, this debate is doomed to failure, for it seeks an answer that the people themselves were not prepared to give in 1791. Kurt Lash Loyola Law School, Los Angeles ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
