Back to Schoolhouse Rock!

Apparently, some legislators are upset enough by courts actually, you know, enforcing the First Amendment that they've decided to resurrect a Ten Commandments Defense Act.

Now, I'm not a fancy city lawyer… I'm just a simple unfrozen caveman. Your "rule of law" and "stare decicis" are strange and unfamiliar to me. Yet I still feel fairly confident that you can't create an exception to a constitutional amendment by statute. So did the sponsors of this puppy just skip their Schoolhouse Rock! growing up, or can we assume that they've noticed how much good political mojo a bit of pointless grandstanding generated for Roy Moore?

Comments

[Julian Sanchez]

I’m delighted that Ray has such piercing psychological insight that he can deduce the premises I hold, even when I myself am unaware of them. Actually, I don’t think any sort of symbolism is barred– the inclusion of Moses in a mural showing various historical lawgivers is fine and dandy. In fact, I think the court has pretty much gotten it right over the last half century: what’s impermissible is state action with either the intent or the effect of endorsing or advancing a particular faith, or faith over unbelief. By that standard, Moore’s case is a no-brainer.

[joe]

You don’t have to be against the display of “any” religious symbolism on government property to find Moore’s diplay in violation of the First Amendment. First, you can distinguish between symbolism displayed by private groups, and that displayed by the government itself. Second, there’s the content and intent of the speech – that is, the specific text and imagery on the display. A depiction of the tablets in a mural with other sources of law is clearly an acknowledgement of history, while the design, location, and text of Moore’s rock are just as clearly a shrine to one religious tradition.

Maybe Julian really is opposed to any reference to religion appearing in a public space. But there is no way you can honestly jump to that conclusion based on his recognition that you can’t build religious shrines in a courthouse.

[Anonymous]

… much like Ray’s, such as it is.

[Ray]

Julian,

I’ve yet to see anyone provide evidence of this bit of stone in a courthouse foyer equaling a government established religion.

The “endorsement” of, or “advancement” of a particular religion is a subjective matter that you are dishonestly presenting as a settled matter.

If any symbolism at all constitutes an advancement of religion, then indeed, symbolism is equal to the establishment of religion. But, mere sybmolism has not, as of yet, been legally defined as establishment, hence the SC’s own religious display.

That Christian symbolism is more prominent is only a matter of our Christian tradition. Tradition also, does not an establishment make.

Note that I’m not even arguing for Moore’s case but I’m merely pointing out that your ‘premise’ is that symbolism and establishment have somehow been made legally equal. This of course has not happened though you continue on as if it were true.

[Ray]

Shrine?

So any religious symbolism is by definition a shrine?

[Lefty]

Every one of the supporters of this silliness is a Republican. They’ve gotta get these nuts under control.

[Xrlq]

Tievsky is right about the jurisdictional game. Congress almost never does this because it would “smell” politically – Julian’s example even more so. By the same token, this particular bill singles out a specific religious document, which could make it vulnerable to charges that the TCDA itself is a prohbited “law respecting an establishment of religion.” A more generic bill stripping jurisdiction over all cases in involving state courts with religious displays would probabably pass muster – and in practice, would accomplish the same thing.

I’m no fan of the idea of the Ten Commandments in court, but I’d be lying if I said there was anything unconstitutional about it. I certainly can’t fault Congressmen for taking up this cause. After all, if it’s OK for unelected judges to amend the Constitution by judicial fiat, (as they must, for the Establishment Clause to have any application to the states), then why is it not OK for elected Congressmen to keep them in check? Turnabout is fair play.

[Ray]

So, knowing of course that symbolism in and of itself does not constitute an establishment of religion, Julian chooses the language of ?endorsement? and ?advancement? and joe makes the quantum leap from symbolism to shrines.

Bottom line remains, symbolism is not the legal equivalent of the establishment of religion nor is a plaque, statue or pedestal automatically a shrine.

[brec]

Would someone kindly succinctly state or provide a pointer to where I might find the reasoning that the 1st Amendment (“Congress shall make no law…”) limits state and local government actions?

[Julian Sanchez]

This has gotten tedious, Ray. Go read the last couple of decades worth of establishment cases and get back to us.

[Ray]

Julian,

That’s a copout.

You no more agree with 100% of the Fed judicial rulings than you do with judge Moore.

Simple point is that symbolism does not equal establishment.

The tedium you feel is from your inane attempts at combining your wholly subjective take on the matter with the actual rule of law.

[Ray]

You even avoided using such language yourself. It’s not as if you don’t speak emphatically when you feel confident on your subject. So you choose the ambiguous language of “advancement” of religion because you know better than to say outright that symbolism equals establishment.

Flawed premise, dishonest presentation, copouts, yadayadayada. ..

[thoreau]

Is there really any point in debating whether or not the 10 Commandments display in Alabama constitutes an establishment of religion? It seems like on this forum all of us are more or less set in our positions. Maybe if more people were undecided there would be a point in arguing this. But this thread look a lot like “Is too! Is not! Is too! Is not! You’re copping out! No, you’re copping out! No, you’re copping out!…”

[Ray]

thoreau,

It’s not about Moore.

[Xrlq]

Brec:

It’s called teh doctrine of “incorporation,” which is based on an extremely tortured interpretation of the due process clause of the 14th Amendment. That clause provides that:

“No State shall … deprive any person of life, liberty, or property, without due process of law.”

Common sense means that this clause prohibits states from taking people’s property, throwing them in jail, etc. without a fair trial. Instead, through a series of cases that would make the Nevada Supreme Court blush, the Supreme Court has decided that this phrase means essentially the following:

“1. With or without due process of law, no State shall do anything that Congress can’t do under the First, Fourth, Sixth Amendment, Eighth or Ninth Amendment, nor shall it violate the double jeopardy, self-incrimination or takings clauses of the Fifth Amendment.

2. Nothing contained herein shall be construed to prevent any State from wiping its proverbial butt with the Second Amendment, the Seventh Amendment, or the Grand Jury clause of the Fifth Amendment.”

[joe]

“So any religious symbolism is by definition a shrine?”

No, that’s exactly the opposite of what I said. I explicitly stated that how a piece of religious symbolism should be construed depends on its specific character and context. I said that this particular religious symbolism is, in fact, a shrine.

Have you seen a picture of the thing, Ray? Have you? It’s a freaking shrine. Moore says its a shrine. His supporters say its a shrine. It walks like a duck, it quacks like a duck, in swims like a duck. It’s a duck, Ray, and so is your attempt to pretend there’s some question about the nature of the thing.

[Mark A.]

Ray, I’m curious. How strenuously would you be arguing in favor of your symbolism ? establishment claim if, instead of the Ten Commandments, Judge Moore had a Wiccan pentagram engraved on the floor of the foyer of the courthouse? This is just a symbol, after all.

[Ray]

Shrine: a place in which devotion is paid to a saint or deity (Merriam Websters)

I haven’t heard of Moore or his minions using the actual word shrine but even if they did, does that make the thing legally so?

There are further definitions that could apply more innocuously to symbolism but this is not the context that you used the term “shrine” in though perhaps it is the context some of the supporters used.

So to use the the more innocuous definition would render a shrine only a symbol and therefore not legally an establishment.

To use your context of a shrine, the stone would have to be some sort of destination or object of worship, which it is not, regardless of the semantics involved with Moore and his people.

[Xrlq]

A Wiccan pentagram would be a really dumb idea, but that does not mean it would be unconstitutional. You do realize that the terms “dumb” and “unconstitutional” are not synonymous, right?

[EgoLadenDilettanteGuy]

I don’t get it. Every time someone points to the word Congress in the 1st amendment and says “Huh? Moore not equal Congress!”, another guy says, “Uh, read the 14th,(idiot)” and that ends the thread. I understand how the 14th (state cannae abridge privileges or immunities) would apply to the free exercise clause, but I just don’t see how it applies to the establishment clause, or in fact any clause specifically limiting Congress’ power–especially in light of the 10th. Explain please. (and don’t give me that true explanation–that Constitutional interpretation is fundamentally teleological and in no way based on the text of the document itself–I want a reasonable argument).

[Ray]

Mark A.

Thank you Mark. You make my point for me.

While I’m talking about a strict definition of what constitutes an establishment of religion, you find yourself caught up with how someone might “feel” about certain kinds of symbolism.

I’ll let you and Julian discuss your “feelings” over some herbal tea, I’m sticking to the objective point; that symbolism does not equal establishment.

[Tax Lawyer]

Re: Congress placing constitutional cases outside the Sup Ct’s jurisdiction. While Congress may pass laws establishing the jurisdiction of Art III courts, you should also read an early Supreme Court decision, Marbury v. Madison, that establishes the Court’s power to interpret the Constitution. It is nearly certain that the Supreme Court would strike down a statute that placed Constitutional cases outside the Court’s jurisdiction

[thoreau]

OK, I’m going to jump back into the fray on the symbolism issue. Say that the monument stayed. Now, another Christian denomination with a somewhat different Biblical translation wants its version of the Commandments posted as well. (It might seem like a trivial difference, but to people who care these molehills become mountains!) If the Alabama Supreme Court denies that request, it’s picking and choosing which religious monuments/expressions/symbols/whatever can and can’t be in the courthouse. If that isn’t an establishment on a particular religion, I don’t know what is.

But, suppose the AL court allows a second monument. Then both of Alabama’s Muslims demand that passages from the Koran be displayed. To avoid favoring Christianity, the Koranic passages are displayed. Then the Buddhists want something displayed. And the Hindus. And the Zoroastrians. And the Wiccans, the self-proclaimed Druids, the idiots who claim that Jedi is their religion, even some pranksters who insist that Thor is their deity. They all want something displayed. Since favoritism among religions would be an establishment of religion, they get their stuff included too. Pretty soon even the Satanists are demanding a sign that says “Thou shalt kill.”

Next thing you know you can’t walk through the courthouse because the foyer is cluttered with monuments to the god of fairness. So finally somebody will have to say “This is a courthouse, not a church. Get your religious monuments out of here and put them in your churches.”

[Mark A.]

Ray, what a mealy-mouthed, evasive response you posted! You must be very proud. Go find somebody who knows how to read and have them read my previous post to you. Nowhere in it does the word “feel” appear. Nowhere. I asked, quite politely, how strenuously you would argue. But don’t worry — I no longer care. You can go back to smashing beer cans on your forehead.

Xrlq,

I don’t know what you’re trying to say. Your post was pretty “unconstitutional”.

[joe]

Egoladendilletanteguy,

The 14 says, in part, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…” What are the privileges and immunities of citizens of the United States? Among other things, the phrase includes those privileges and immunities laid out in the Bill of Rights. The 14th supercedes the 10th in cases of the states trying to violate individuals’ rights, as defined in the Constitution itself.

[StMack]

Joe your point that “the 14th supercedes the 10th in cases of the states trying to violate individuals’ rights, as defined in the Constitution itself,” is valid but how this can be stretched to cover a clause that expressly prohibiting an action of Congress escapes me.

[joe]

huh?

[Xrlq]

Joe, you’re wrong. No part of the Bill of Rights has ever been “incorporated” under the privileges or immunities clause. That clause was judicially nullified in the Slaughterhouse Cases, years before activist courts made up … I mean, “discovered” … the doctrine of (selective) incorporation under the due process clause.

Even if the courts had used the P&I clause as the vehicle of incorporation (and there is some historical evidence to suggest they should have done so), this would only extend to individual rights, not to structural limitations on government. The Establishment Clause simply imposes a flat prohibition on one particular branch of one particular government; it does not create or protect any individual “privileges or immunities.”

[StMack]

what Xlrg said.

[joe]

What I wrote was my reasoning, Xrlq, not an attempt to reconstruct any court’s reasoning.

I read prohibition on government actions to be substantially the same as individual rights to be free from those actions. Again, this is all me; I have no idea if this stance has been adopted or rejected in the courts.

[tievsky]

I believe “incorporation” is based on the Due Process clause of the 14th, not the Priveleges and Immunities Clause.

And Thomas, in a concurring opinion of the last few years (sorry, can’t recall which religion case), suggested that the Establishment Clause is not “incorporated.” I think it’s a plausible argument.

[Xrlq]

OK, fair enough. I actually agree with you on the P&I clause generally. I still think that a distinction must be drawn between those constitutional provisions that secure individual rights (e.g., the free exercise clause, the free speech clause or the RKBA) and those that simply limit the functions of a particular part of government (e.g., the establishment clause, presidential term limits or the separation of powers).

In other words, if Parliament were to pass a law requiring all Brits to be members of the Church of England and attend services at least three times per month, I’d have no trouble arguing that this was a terrible violation of its citizens’ (non-constitutional) right to freedom of religion. By contrast, I don’t think that the mere existence of the Church of England violate’s anybody’s “rights,” even though it clearly would violate the Establishment Clause if implemented here.

[thoreau]

I’ve never understood the priorities of libertarians who argue so vehemently against the notion that the 14th obliges the states to abide by the Bill of Rights. Yes, I understand that if it’s incorrect it’s incorrect.

But compared with all of the other “creative” Constitutional interpretations out there, this is by far the most benign. Most of the creative Constitutional interpretations are used to say that Congress can regulate anything and everything under the sun due to the commerce clause. Or that Congress can disregard the Bill of Rights if it has a “compelling interest.”

Requiring states to abide by the Bill of Rights is one of the few places where a creative Constitutional interpretation is used to strengthen individual liberty. Yes, it limits the powers of state official. Well, I’m not interested in granting state officials more power. I’m interested in protecting individual liberty from ALL officials, be they local, state, or federal.

So even if, for the sake of argument, the “incorporation doctrine” is incorrect, in the grand scheme of things it seems like the least significant Constitutional infringement there is. I’ll worry about the validity of the “incorporation doctrine” only after we find a way to end abuses of the commerce clause and “compelling interests.”

Anyway, I’ll never understand why some libertarians are so ardent in their opposition to extending the applicability of the Bill of Rights, one of the noblest documents in American history.

(None of this should be taken as an argument on whether or not the 10 Commandments monument is an “establishment of religion.” There are two issues in deciding whether or not that monument violates the 1st amendment: Does the 1st amendment even apply to the state of Alabama? If so, does that monument constitute an “establishment of religion”? This post only addresses the first question. The second question I’ve addressed previously.)

[joe]

“…those that simply limit the functions of a particular part of government (e.g., the establishment clause, presidential term limits or the separation of powers).”

I think there is a distinction to be drawn here, as well: those provisions that direct how the government attends to its own internal affairs (term limits, separation of powers) and those that restrict how the government acts in its dealings with non-governmental actors, such as churches or their beliefs.

[Xrlq]

Thoreau:

Your point is taken – I’m not a big fan of state churches myself. But I do think that judges should interpret the law as written, and not invent creative “constitutional” theories that derive neither from the text of the constitution nor from its drafters’ intent. Also, even in the case of incorporation, the results are not as unambiguously libertarian as you suggest. While courts have been all too eager to stretch the Establishment Clause, which does not confer an individual right, they have expressly declined to incorporate the Second Amendment, which does.

[DisgustedInAlabama]

Ray, you stated:

“Shrine: a place in which devotion is paid to a saint or deity (Merriam Websters)”

“I haven’t heard of Moore or his minions using the actual word shrine but even if they did, does that make the thing legally so?”
…
“To use your context of a shrine, the stone would have to be some sort of destination or object of worship, which it is not, regardless of the semantics involved with Moore and his people. ”
============================================
In my experience of going into the judicial building at least several times a month (I live and work in o-so-forward Montgomery, AL), there has literally *never* been a time that there wasn’t somebody praying at that “little rock.”

LITTLE ROCK?!?! The damn thing weighs in at 2-1/2 tons, and took a special crane brought down from Birmingham for ol’ Roy to sneak it in here in the dark of night.

As to “the stone would have to be some sort of destination or object of worship, which it is not,” I beg to differ. Try to convince me that a busload of hausfraus from Iowa falling to their knees at the sight of the thing (you can’t miss it) and singing praises to Jesus isn’t evidence of the thing being a destination _and_ an object of worship. Show me how a prayer circle surrounding that 5280 pound hunk of granite — 30 school-age kids from Atlanta — isn’t at least a bit worshipful.

Nope. Anyone who’s walked into that rotunda knows precisely what the meaning and intent of the monument is (or is *supposed to be… see below) — all that without even having it explained, which Judge Moore does quite often and quite explicitly, by the way.

Moore’s own not-so-little pulpit, that’s what the rotunda of the Alabama State Judicial Building has become. He’s loving it… wouldn’t be surprised to see him on the ticket for a U.S. Congressional seat next year…

“little rock” “not a shrine” *snort*

[Kevin Carson]

tievsky,

Actually, I believe “substantive equal protection” is the legal hook the incorporation doctrine is hung on today.

joe,

The phrase “privileges and immunities” appeared in both the original, unamended Constitution, and in the Articles of Confederation. It was a legal term of art that had appeared in charters and letters patent for some time, and was commonly used to define someone’s rights in terms of the rights granted in some specified jurisdiction. The clause in the Articles and the Constitution (Article IV in both cases) was intended to establish comity between the states, by mutually naturalizing their citizens. The idea was that when a citizen of one state was resident in another state, he should have the same fundamental rights granted to citizens of the state in which he was residing, without discrimination based on his place of origin. The intended effect of the language in the Fourteenth Amendment was simply to extend the same principle to race, so that whatever rights a state recognized for its white citizens, it was also bound to grant blacks. It had no substantive requirements.

I’ve got the first part of Chapter Seven of my “State Sovereignty” manuscript posted on the “Articles and Essays” page of my site. It deals with the history of the terms of art in the Fourteenth Amendment in a lot more detail.

[some lawyer guy]

I think Tax Lawyer is onto something. I’m not a fancy constitutional lawyer, but I remember those old cases from Reconstruction that we had to read in law school about how Congress can’t use its power to define the jurisdiction of federal courts to define the jurisdiction of the Supreme Court. As far as whether states have the power to establish religions, I think that’s a pretty easy one. Before the Constitution, some of the former colonies (like Virginia, home of many Framers) actually DID have established religions. Jefferson intended for the Bill of Rights to kill that kind of thing.

[Kevin Carson]

I think tievsky’s got it right on the “appellate jurisdiction” thing. Theoretically, the First Congress could have refused to set up any federal courts inferior to the Supremes, and restricted it to its appellate jurisdiction. In that case, the state courts would have had the sole responsibility for upholding the federal constitution over state law, and a separate body of constitutional law would have evolved in each state.

This makes sense, considering that the original jurisdiction of the S.C. is limited to cases to which a state is a party, or to diplomatic cases. In other words, cases that might lead to warfare between the American states, or with a foreign state. Everything other issue of federal law, potentially, could be left to the discretion of individual states to enforce, without any catastrophic result.

The Federalist Papers stressed that Congress might well take a minimalist approach, and leave the primary responsibility to the states. Of course, when the Constitution was safely ratified, and swing votes no longer had to be appeased, the Federalist Elbridge Gerry (I think it was) granted the maximum possible power in the first Judiciary Act.

[EgoLadenDilettanteGuy]

joe, StMack, Xrlq, tievsky, Kevin Carson:
Thanks all for your discussion of my question. Xrlq makes the most sense to me–comparison with UK’s state religion was apt. tievsky, the application of the Due Process clause seems to me WA-A-A-AY-non-sequitur. Kevin Carson, equal protection seems more reasonable, but subject to the same criticism as the privileges and immunities hook.

[Kevin Carson]

Ego,

I don’t buy it myself, but it’s the clause they’re using.

thoreau,

My objection to incorporation is that it violates the principle of self-government. The only way we can evolve toward a genuinely free society is through a learning process, in which people deliberate on policy (the more direct and participatory, the better), suffer the consequences, and take responsibility for change. People have to learn to think of themselves as their own governors, and not depend on a class of philosopher-kings in robes to save them from their own folly. They need to be responsible, as free human beings in control of their own destinies, of safeguarding their liberties with constitutional safeguards at the local level. And they need to perceive the ill effects of violations of such liberties as the result of their own actions, to be remedied by themselves.

Civil liberties are subject to interpretation, and I’m willing to bet that a motivated minority stands a lot better chance of remedying an illiberal construction at the local level than at the level of the imperial capital.

[Ignorant Law Student]

The constitutional question here is pretty much philosophical; I’ve argued it over elsewhere, and it all depends on how much religion you think is a good thing.

As for jurisdiction, that’s a fascinating question. I’m not a Constitutional scholar myself, but if I remember correctly, Ex Parte McCardle, 7 Wall. (74 US) 506, 19 L. Ed. 264 (1869) states that Congress can take some questions, such as if Reconstruction is constitutional, out of the hands of the Supreme Court. It’s still with us, at least in the determination that bankruptcy courts aren’t Article III courts because Congress didn’t make them that way.

Congress could remove jurisdiction of the question, and it would leave it to the state courts to make the decisions, probably on a state-by-state basis. Would the Supreme Court hear a challenge to a law denying jurisdiction? Unless I’m totally off, it would have to be an appeal from a dismissal, and the Supreme Court could just punt on it.

[Kevin Carson]

thoreau,

to elaborate on the last post a little more, people are in too much awe of the State, viewing it as some magical realm from which all our benefits are derived (or at least a professionalized stratum to which decisions are best left). That’s why you get the late Ann Landers’ rhetorical question, “Where would we get our roads, and schools, etc?” That’s why you get the popular attitude that our rights are not something inherent and inalienable, but something given to us by a benevolent government.

We need to get in the habit of thinking of rights as something WE give ourselves, and defend, by our local associations as free people, and by the rules we establish DIRECTLY for governing our relations within the community. We need to think of all social goods and benefits as things that are organized and provided by flesh-and-blood human beings, who interact with each other, and not some mythical, idealized being called the State.

The higher the level of government involved in any type of policy, including civil liberty, the further removed it will be from this concrete perception, and the greater the tendency of the people to be infantilized into depending on authority figures to do what’s best for them.

[joe]

Kevin sez: “I’m willing to bet that a motivated minority stands a lot better chance of remedying an illiberal construction at the local level than at the level of the imperial capital.” Despite all evidence to the contrary. I can think of a boatload of examples of the feds compelling backwards polities like Mississippi to treat this or that minority like human beings, or at least citizens.

And your disdain for autocrats in robes is oddly selective, falling so heavily on federal district judges while sparing state appellate and supreme courts entirely.

[Kevin Carson]

joe,

I think what happened with civil rights was just the opposite: the rights were won by boycotts and sit-ins, and blacks generally refusing to sit down and be docile; and the feds stepped in, codified it in law, and said “see what I’ve done for you!”

And the black robes in Washington are only the first I want to see guillotined. The Arkansas Supreme Court has been realy pissing me off lately. I won’t be happy until we’re down to neighborhood government.

[Steve in CO]

Pun ahead:

God can we have a commandment stating, “thou shalt keep thy religion to thyself!”

Huh, please?

PS What happened to the front page (https://reason.com)?

[Steve in CO]

Never mind about the home page … seems to have been quickly cleared up (or it was my browser/PC the whole time).

🙂

[tievsky]

According to the first sentence of the article, the “bill…would limit the authority of federal courts to intervene in cases like the ongoing dispute in Alabama.” I recall from my high school government class that it’s within Congress’s power to determine what sorts of cases reach the Federal courts.

Article III states that Congress may “establish” the inferior Federal courts (implying that Congress can control what sorts of cases they hear) and that, other than a few types of specific cases, “the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

So, this ridiculous law could indeed put the Ten Commandments beyond the reach of the federal courts and thus the 1st Amendment of the U.S. Constitution.

[thoreau]

Kevin-

As far as judicial solutions thwarting self-government, I don’t see a national minimum level of freedom causing any problems. Federal courts can only set a minimum level of freedom, overturning state laws that contradict whatever constraints the Constitution may place on the states. (Notice the phrasing there, I don’t comment on whether the Bill of Rights is included in that set of constraints.) The people of each state can still, via their political and judicial processes, establish even more expansive guarantees of freedom. Look at how Alaska’s courts have recently ruled that the state Constitution protects personal marijuana use, acts of direct mass democracy not withstanding. (As so many people like to say, I guess Alaska is “a republic, not a democracy!”)

Besides, the courts have one virtue that in some ways places them even closer to the citizens than the legislative and judicial branches at every level of government: When a liberty is infringed, a crime is committed, or a dispute reaches a point where the involved parties cannot resolve it, the court will actually hear the specifics of the case at hand. The court won’t have to guess at what cases might arise, as policy-makers in the legislative and executive branches will. The court will actually hear from the people involved.

I’m not saying that everything should be handled via courts. There’s a reason why we have 3 branches of government. But if a law infringes a liberty protected by a higher law (e.g. the Constitution of a state or the US) it’s good that an aggrieved citizen can take his complaint directly to somebody who can hear the details of the case and then overturn that unconstitutional law. The injured citizen won’t have to write to a legislator, hope the letter is read, hope the legislator cares, and hope the legislator can win over his colleagues.

Of course, not every injustice is directly barred by a Constitution (be it state or federal), so judicial remedies aren’t appropriate for every injustice. But I have no objection whatsoever to appealing to the courts when an injustice does arise. And I have no objection whatsoever to the federal courts upholding a minimum level of freedom while the people of each state establish more expansive levels of freedom. As distant as DC might be, the federal judge who’s hearing your case is right in front of you.

[StMack]

Actually, the 1st Ammendment prohibits CONGRESS from establishing a religion. The 10th says that whatever power the constitution does not grant to or prohibits the FEDERAL government rests in the hands of the states or the people. There is NOTHING in the Constitution that prohibits the State of Alabama from passing a law making the Christianity the official religion of the state or the state of California making Scientology its official religion.

[Mike]

Nothing but the 14th amendment, and anything in a state’s constitution that may prohibit a state religion.

[digamma]

Hey, there are SOME educational cartoons relevant to this situation….

Kid: Hey, who left all this garbage on the steps of Congress?
Amendment: I’m not garbage.

(starts singing)

I’m an amendment-to-be, yes an amendment-to-be,
And I’m hoping that they’ll ratify me.

There’s a lot of flag-burners,
Who have got too much freedom,
I want to make it legal
For policemen to beat’em.

‘Cause there’s limits to our liberties,
At least I hope and pray that there are,
‘Cause those liberal freaks go too far.

(spoken)
Kid: But why can’t we just make a law against flag-burning?
Amendment: Because that law would be unconstitutional.
But if we changed the Constitution…
Kid: Then we could make all sorts of crazy laws!
Amendment: Now you’re catching on!
Kid: What if people say you’re not good enough to be in the
Constitution?

(sings)

Amendment: Then I’ll crush all opposition to me,
And I’ll make Ted Kennedy pay.
If he fights back, I’ll say that he’s gay.

(spoken)
Congressman: Good news, Amendment! They ratified ya!
You’re in the US Constitution!
Amendment: Oh yeah! Door’s open, boys!
[many bills and amendments run in, guns a-shooting and bombs a-flying]

[thoreau]

Let’s say for the sake of argument that the display in Alabama was unconstitutional. Just for the sake of argument.

Anyway, suppose Congress says that the federal courts can’t interfere. On the one hand, Congress has every right to delineate the jurisdiction of the federal courts, as specified in Article III. On the other hand, the 1st and 14th amendments were enacted after Article III. So one might say that this law is an attempt to subvert amendments that take priority over Article III (newer laws always take priority over older laws).

Mind you, I’m not saying that this particular instance is a violation of amendments 1 and 14. I’m asking a more general question, about whether or not Congress can essentially bar the courts from enforcing amendments enacted after Article III.

Better yet, let’s put this in language that people here can sympathize with:

Suppose that Congress said the federal courts have no jurisdiction over cases where somebody claims his 2nd amendment rights were violated (by either Congress or the states). Congress could essentially place unconstitutional laws beyond the scrutiny of the courts. More importantly to people here, Congress would be denying people any judicial recourse for defending their right to keep and bear arms.

How would people feel about that?

[R.C. Dean]

“I’m asking a more general question, about whether or not Congress can essentially bar the courts from enforcing amendments enacted after Article III.”

I believe they can – Congress has the power to establish the jurisdiction of the courts. The amendments don’t affect that power. The statute limiting the jurisdiction of the federal courts need not violate either the First Amendment (it need not establish a religion) or the Fourteenth (it doesn’t violate anyone’sequal protection guarantees).

As it happens, this particular bill specifically and explicitly protects the display of the Ten Commandments, and so this bill is itself vulnerable to attack as an establishment of religion. If it were couched in more general/neutral terms, it would probably pass Constitutional muster.

This would leave the state courts, of course, as the venue for enforcing the establishment clause.

[joe]

Congress could forbid the use of federal funds for any purpose related to the removal of stone items from state courthouses.

[Julian Sanchez]

Mack-
Like Mike said; for about the last half century, the 14th amendment has been interpreted (correctly, in my view) to apply most of the Bill of Rights to the states.

Tievsky-
Ah, yes, that old maneuver… I’ve always wondered whether that would stand up in practice, though. If we buy this as a valid general practice, it seems the congress could simply exempt any legislation at all from constitutional review by adding an appropriate rider. At least at the SC level, it seems there must be some limit on the kinds of “Exceptions” that are admissible. Anyone better versed in the case law able to shed light?

[Ray]

Julian?s entire premise rests on the dubious assumption that any display of religious symbolism on government property is a violation of the 1st Amendment?s ban of government established religion.

Therefore everything that follows is equally flawed as well if not more so. We can change the tone of the conversation, which has already began to happen anyway, by getting more to the point of Federal intervention in the States? affairs. But this lets Julian off the hook and indirectly validates his seriously flawed argument that symbolism equals establishment.

[Andrew Lynch]

threads dominated by lawyers are boooooring.

[Douglas Fletcher]

Mr. Hart, that is the most intelligent thing you’ve said today….

[Baron David]

EMAIL: [e-mail]
IP: 62.213.67.122
URL: http://www.PENIS-ENLARGEMENT-CAPSULE.NET

DATE: 12/10/2003 05:15:35
Genius hath electric power which earth can never tame.

[Bachrach Amy]

EMAIL: [e-mail]
IP: 210.18.158.254
URL: http://preteen-sex.info
DATE: 05/19/2004 02:31:08
Insanity is forgetting to believe a few lies.