Stephen Breyer's Usable Past

Damon W. Root | November 4, 2010

Eagle-eyed legal scholar Josh Blackman catches Supreme Court Justice Stephen Breyer making another mistake about constitutional history. Here’s Breyer from yesterday’s oral arguments in Arizona Christian School Tuition Organization v. Winn:

JUSTICE BREYER: If you go back into history, it could have been the case that the — as long as they were fair to every religion, the first Congress could have funded prayers throughout the nation in churches for anyone to go and pray and that would not have violated the Establishment Clause, or if it had, nobody could have challenged it.

Yet as Blackman explains:

The only problem with that statement is that the First Congress met from March 4, 1789-March 3, 1791. The First Amendment was ratified on December 15, 1791. Under no set of circumstances would the First Congress have been bound by an unratified amendment.

Read the whole thing here. I explain why Breyer is no "Scalia of the left" here.

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hmm |11.4.10 @ 10:22AM|#

Give him a break. It isn't easy rationalizing and justifying doing exactly what you want using historical context. It takes some work and imagination.

Montani Semper Liberi|11.4.10 @ 10:26AM|#

History is formalistic.

¢|11.4.10 @ 10:33AM|#

Because where would libertarian nostalgia for the Confederacy be without chronology?

This post is the most racist thing that ever happened.

|11.4.10 @ 10:55AM|#

fail troll is fail.

Old Mexican|11.4.10 @ 10:58AM|#

Re: Cent,

There's nostalgia for the Confederacy among libertarians?

This is probably like the millionth time I have heard this - from the Southern Poverty Law Center, which makes the truthfulness of the accusation ever so less likely than the possibility of grafting narwal DNA and horse DNA to obtain unicorns.

Ayn_Randian|11.4.10 @ 12:08PM|#

There isn't a shortage of Rockwellians and Confederate-apologists who agree with libertarians, and even call themselves that sometimes.

JSinAZ|11.4.10 @ 11:28AM|#

Cent is snarking about the Articles of Confederation which were replaced by the Constitution in 1789 as the basis for the national government.

Jeeze, I thought "racist" was an obvious sarc tag around here...

Justice Breyer|11.4.10 @ 10:40AM|#

Did I say First Congress? I meant Second, you literalists.

H man|11.4.10 @ 10:50AM|#

Hmm, enumerated powers. Funded prayers, funded prayers. Nope not in here I guess the first Congress could not have done it.

jtuf|11.4.10 @ 10:50AM|#

In the long run, eliminating government schools is the best way to promote freedom, and school choice comes in second. When children grow up in freedom, they're more like to expect freedom as adults.

Old Mexican|11.4.10 @ 10:53AM|#

Supreme Court Judges, not knowing or distorting constitutional history to suit their mindsets?

Say it ain't so, Shoelace! Say it ain't so!!!

Shoeless. Sorry.

|11.4.10 @ 10:57AM|#

That's OK. Apparently he couldn't spell his own name.

|11.4.10 @ 11:00AM|#

Can't this man just go back to running his ice cream empire and leave the serious adjudication to others.

Oh wait, would that mean Obama gets to put another EEO slapdick on the court? Nevermind then.

What the First Congress could do is largely irrelevant when discussing a state program. But Justice Breyer would really be making an ass of himself if he brought up what State Legislatures could do re: religion at the time of the First Amendment.

|11.4.10 @ 11:03AM|#

You don't know history. You make it. Up.

I'll Drive, Thanks|11.4.10 @ 11:10AM|#

If you split the hair perpendicularly, Breyer's statement is perfectly accurate. As Blackman says: "Under no set of circumstances would the First Congress have been bound by an unratified amendment."

Lady GaGa's tailor|11.4.10 @ 11:27AM|#

What's all this nonsense about First Amendments and whatnot. The Constitution is a dead letter.

Senator Blutarsky|11.4.10 @ 11:34AM|#

Shhh. He's rolling.

Anatole|11.4.10 @ 11:36AM|#

Breyer is wrong about a bunch of things but catching him on the exact dates of Congresses and amendment ratifcation is really, really nitpicky, since it doesn't really affect the soundness of the point he was making (you could substitute any pre-Marbury Congress).

It might not be a good point he was making, but that's another matter.

Steve Chaos|11.4.10 @ 11:42AM|#

Precisely. Breyer says plenty of dumb things; catching him on what amounts to trivia does little to augment to case (and can even cause it to look weaker on the net). Does his argument change radically if one substitutes "First" for "Second" Congress?

It would be a little different if the chronology were off more significantly, here. But this really does look like nit-picking.

augment the case, rather.

prolefeed|11.4.10 @ 11:46AM|#

His argument is wrong either way, First or Second Congress. At no point has congress had the authority to extract taxes without consent and then hand them over to churches to finance prayer.

Steve Chaos|11.4.10 @ 11:50AM|#

I agree; therefore, picking on historical trivial is pointless and weakens the real argument, which is that Breyer's point, regardless of trivia, is fundamentally unsound. Harping on dates as opposed to the actual argument he makes is a distraction.

Alan Vanneman|11.4.10 @ 11:42AM|#

Thomas Jefferson might have disagreed: "to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical" (Virginia Statute for Religious Freedom, composed 1777, enacted by Va. legislature, 1786).

prolefeed|11.4.10 @ 11:43AM|#

At no point after the British were booted out did Congress have the power to fund school prayers, not under the Articles of Confederation or under the Constitution.

How anyone thinks that SCOTUS is the ultimate authority on what the Constitution means, with people like this arsehole on the court, is beyond me. About 8 of those justices need to be impeached and removed from office for repeatedly violating their oath of office.

The problem, of course, is that the people with the power to impeach almost all need to be impeached and removed for violating their oath of office also.

Almost no one in the federal government actually is acting under the restrictions set forth in the Constitution.

FTFY|11.4.10 @ 11:55AM|#

~~Almost no~~ No one in the federal government actually is acting under the restrictions set forth in the Constitution.

|11.4.10 @ 11:48AM|#

Historical accuracy is the hobgoblin of little minds.

Rich|11.4.10 @ 12:00PM|#

If you go back into history, it could have been the case

He obviously meant "go back into history" in the sense of time traveling.

For a site called Reason .... (rolls eyes)

Pedantry |11.4.10 @ 12:04PM|#

For you and me!

|11.4.10 @ 12:06PM|#

Let me first say that I am not religious. At all. I went to elementary school with Madaleyne Murray O'hair's son Garth, the little shit, who later changed his name and was murdered along with his mother. It was around the time we were in school that we stopped praying in school. I never actually prayed because I didn't know the prayers, but I bowed my head when told to etc. It never made me want to go to church. And since my parents didn't go to church, I never did, except for giggles. I guess Garth was upset, though his brother has become some kind of evangelist I think.

Breyer's point is probably correct, despite his history brainfart. No one back in the day really cared about how school prayer violated the establishment clause. And as unlikely as funding it ever was, if all religions were funded equally, then the government arguably would not have been "technically" "establishing" "A" ""religion". I don't htink he wants to start now.

PS I think Breyer is an ass.

|11.4.10 @ 1:41PM|#

I still don't want to be your friend.

|11.4.10 @ 1:49PM|#

Picture a tear streaking down a clown's face. Is there anything sadder.

Ayn_Randian|11.4.10 @ 12:15PM|#

Are we really nitpicking about this? Are reasonistas 100 years from now going to jump down the neck of a Supreme Court Justice if he says the 110th congress passed Obamacare, instead of the 111th? There's funny and there's petty and trifling.

Lady GaGa's tailor|11.4.10 @ 12:36PM|#

This whole discussion seems to be nonsense. The inclusionary principle wasn't established until the latter part of the nineteenth century and the FedGov wasn't handing out tax dollars to schools in the early days of the Republic.

nfl jerseys|11.4.10 @ 9:06PM|#

This

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