Whim Substitutes For Constitutionalism
Breyer casts decisive vote on religious displays -- Justice: Old monuments with Commandments are OK; new displays are not (Tom Curry, MSNBC)
One important factor for Breyer: The Austin Ten Commandments monument was in a park with other historical monuments around it. “The setting does not readily lend itself to meditation or any other religious activity,” Breyer decided.
Hinting at practical political consequences, Breyer also worried that if the court banned long-standing displays of the Ten Commandments, it might spark public outrage, “the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.”
The Establishment Clause, of course, was intended to act as a check on the Congress (not states), an assertion consonant with the fact that some states actually had established religions in our early national history. Since there was no attempt by Congress to establish a religion in the cases presented, that would have ended the inquiry for me. Instead, Breyer's (and the majority's) whims are going to be the source of years of litigation to try to sort out just what in the world he meant. One wonders if he even knows.
Still, the majority reasoning, along with expected Court vacancies and confirmation battles, should give the GOP a nice boost in various 2006 Senate races.
Posted by Kevin Whited @ 06/27/05 21:03 | American Politics | Technorati
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Well sure, Kevin, but your view is only one of the competing views of the proper interpretation of the EC clause. And there's plenty of good evidence to support the alternative explanation.
(Bear in mind, while I am a total believer in strict separation, I think the Court's EC jurisprudence is horribly muddled and in need of serious overhaul)
Posted by TP @ 10:01 on 06/28/05
Sorry if that comment sounded overly pugnacious. Sometimes I visit this site before I've had my coffee. Got to stop doing that.
Posted by TP @ 10:31 on 06/28/05
Eh, I don't tend to take comments that way.
There were established religions at the state level during our early national history. That's not a view, but fact. So somewhere along the way, the way we think about the Establishment Clause must have changed, and significantly if we now have justices seriously considering whether they must remove certain architectural decoration from the building they inhabit!
Whether folks think such change absent amendment is a good thing is, of course, in the realm of opinion. I get that. And I don't especially WANT to live in a state with an established religion! But, whimsical jurisprudence (yes, I'm being a little flippant) is also something that bothers me.
What do to? I don't think these decisions ought even to be called decisions, they were so indecisive! :)
Posted by Kevin @ 22:47 on 06/28/05
Sure something changed: incorporation.
Now, your perspective mirrors J. Thomas's -- he doesn't think the EC should have been incorporated. I happen to think he is mistaken on that, but at least his opinion is consistent (for the record, I really respect J. Thomas and have nearly always done so).
Posted by TP @ 23:48 on 06/28/05
Yep, our friend incorporation.
I really like Justice Thomas. His constitutionalism is as close to what I would call the Claremonster perspective as there's been since.... Sutherland, maybe? Of course Sutherland preceded the Claremont perspective. :)
As incorporation goes... It's really interesting to me to go back to the debate of the Founding period, and try to figure out this question of popular sovereignty. I have this notion that the fine authors of the Federalist papers weren't entirely honest in their views of sovereignty, and indeed realized that their proposed constitution would (over time) change the basis of popular sovereignty (or at least popular consent) from the people of the several states to the people of the United States. I think there's some esoteric evidence in the Federalist for that view, but I never had a chance to flesh it out.
If that ever were fleshed out, one might easily defend incorporation as the working out of ambiguous Founding-era notions of sovereignty (despite the Tenth Amendment). Alas, who has the time for such interesting pursuits these days?
Sometimes -- not often, but sometimes -- I miss the academic life of the grad student. :)
UPDATE: Okay, the italicized part of the comment is an update. I initially repeated several states when I meant United States, which was confusing (even nonsensical).
Posted by Kevin @ 11:48 on 06/29/05
That's all extremely interesting (not being sarcastic). I obviously find your theory appealing, but that's because I'm generally a fan of incorporation. But I think there's a solid case to be made against it, and J. Thomas did it well in the Kentucky case. J. Scalia's dissent, however, was a piece of crap, as others in the blogosphere have noted.
I too miss the academic life of the grad/law student.
Developing . . .
Posted by TP @ 13:23 on 06/29/05
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