Friday, July 15, 2005

The Cheap Response to Comments Entry

I'm getting lazy in my second year here, so I thought some simple responses to comments on the Supreme Court post would get my a cheap entry. So here goes.

Clupbert writes:

liked the post Hatcher, but you are wrong here:
"When they dropped the state religion, it was not based upon demands of the Federal government enforcing the law of the land, it was dropped through a democratic process. "
It was dropped because of the 14th amendment which made the constitution applicable to all state laws as well. We learned this exact thing in poli-sci class. Just letting you know...

See what happens when a guy still in college reads your blog? None of the other so-called educated people were able to point out the Hatcher's fast and loose playing with the facts. Now, I clearly didn't know that the 14th Amendment achieved this, but even still I think what I said was probably correct. I would bet (not a lot) that any state that had an established religion had dropped it by the time the 14th amendment came around; or, lacking that, such laws were as wholly ignored as ones still on the books pertaining to the proper hitching of one's horse at the saloon. But even if I'm wrong on that point, the amendment process is a democratic process - any state that saw their established religion get abolished by the 14th amendment would have ratified the 14th Amendement, so they voluntarily chose to get rid of it.

Here is a quote from Thomas Jefferson, which clearly indicates the 1st Amendment applied to the federal government only: "Certainly no power over religious discipline has been delegated to the general government. It must thus rest with the states as far as it can be in any human authority."

And, one can seriously question the current interpretations of the 1st Amendment's anti-establishment clause applied at any level via the 14th Amendment. The day after the House of Reps passed the 1st Amendment (Spetember 24, 1789), they passed by a 2 to 1 majority a resolution calling for a day of national prayer and thanksgiving. Now, if you put a manger scene up at town hall for Christmas, in a town that is 100 percent Christian, you effectively put a fleet of ACLU lawyers to work.



PBryon said...
I wasn't going to post today--big words like "idealogue" and "oligarch" scare me.
But I'll say that I never really like the argument about historical framework, intent of the writers at the time, etc. To me its similar to the excuses the idealogues at the Catholic church give to not having women be ordained as priests. Women clearly had a different status in life during Jesus' day--its not a reason to keep them from being priests now.
Couldn't similar parallels be drawn to the interpretation of the Constitution?

The alternative, it would seem, is a constitution that is "living and breathing," as many liberals are fond of saying. But when they say "living and breathing", they mean it very minimally, kind of like a crazy old grandfather handcuffed to a radiator in the attic - living and breathing, but completely neglected and ignored. The Constitution has changed with the times via the amendment process, which is democratic in nature. Judicial fiat is not - it may get us to the same place faster than the slow amendment process, but often it gets us to a place that we would never get to via amendment. And the amendment process may be too slow or require too much consensus for your tastes, but if that were the majority view than you could presumably change the amendement process with an amendment. As it stands, five people in a country of 250 million can effectively ammend as they see fit. And even the Church has a Vatican council every thousand years or so, which is probably too often, but the machinery is still there for change.


Jim O said...
The "Separation of Church and State" line does not appear in the Constitution - it was written by Thomas Jefferson in a letter to the Danbury Baptist Association.
I don't think I have a problem with that phrase originating with the father of the Bill of Rights. He was a pretty good thinker, at least in my opinion.
And since when does a Republican espouse an individual state's right? State's rights? You sure you're a Republican?


I thought Madison wrote the Bill of Rights. I think that traditionally the Republicans have been more concerned with State's rights, although the Civil War had us on the other side of it obviously. And even if I'm wrong, I'm still pretty sure I'm a Republican. And Jefferson wrote that to the Danbury Baptists as a warning - don't even try to take away my home brew!

geraldy said...
There is a book on this -- The Supreme Court and the Attitudinal Model by Spaeth and Segal. They focus on extralegal values. The examples you cite on Supreme Court disagreement are all legal values. They are much harder to quantify.
Who's your favorite nominee? Mine are McConnell, Luttig, and Easterbrook in that order.


Well, how 'bout that? I suggest a topic for a book, and not eight hours later someone has already published it and distributed it to such lengths that a reader can recommend it to me. Next time I'll keep my book idea to myself. I like McConnell - best Senator in my view. Scalia, Thomas, McConnell - it would be like Dr. J, Moses Malone, and Mo Cheeks - a sweep of even the Worthy-Magic-Kareem Lakers is guaranteed.

Anonymous said...
i say nominate KARL ROVE, he certainly seams out of a job at the big house, or maybe thats where he is going

Or how about Sandy Berger? Of course he'd have to have his socks searched before leaving work each day, but I don't think the Supreme Court handles any sensitive national security information. More about the Karl Rove situation on Monday...

7 Comments:

Blogger Clupbert said...

I would agree with your response to my comment. That 14th amendment still is very important and the only reason supreme court battles on free speech and such matter so much, is that the states can't take our rights away. Oh and republicans are almost always the ones standing up for state's rights, it's like one of the basic tenets of the party, what is that guy talking about?? The Schiavo case? Does that reverse 150 years of being committed to state's rights?

7:11 AM  
Anonymous Jim O said...

Form what I read, Jefferson leveraged his approval for the Constitution based on Madison's support of the Bill of Rights. Jefferson was in France at the time, so Madison most likely wrote the actual amendments, but my understanding was that Jefferson initiated the idea. I could be wrong...

And I must have imagined the Republican support of federal government over state's rights (Civil war, Lincoln, preservation of the Union, etc.). Sorry.

9:35 AM  
Anonymous geraldy said...

We're not talking about the same McConnell. You are referring to Mitch McConnell. I was speaking of Michael McConnell who is among the leading rumored candidates. He is currently a judge on the 10th Circuit and taught at the University of Chicago Law School for many years. As far as I know, no one has mentioned Mitch McConnell as a candidate at all.

10:45 AM  
Anonymous geraldy said...

Sorry to be overly critical, but both you and clupbert make false and misleading claims about the separation of church and state. First, and most basically, there is no "separation clause" in the Constitution. There is an Establishment Clause (right there in the First Amendment). The separation of church and state is one interpretation of the Establishment Clause.

Second, as Hatch rightly points out, the Establishment Clause did not originally apply to the states. (Official state religions started disappearing as a result of democratic processes in the states in the early Nineteenth century. The mechanism for applying the Bill of Rights to the states in fact grew out of an interpretation of the due process clause of the 14th Amendment, but that application did not occur automatically as a result of the ratification of the Fourteenth Amendment. The application of the Bill of Rights to the states was a slow, 20th century Court-driven process called incorporation. Various rights were slowly "incorporated" by the Court throughout the twentieth century. (Some rights, like those of the Second Amendment have never been incorporated at all.)

The incorporation of the separation of church and state as an interpretation of the Establishment Clause occurred in 1947 in a case called Everson v. Board of Education. This case dealt with the use of public buses for parochial school students.

Establishment Clause jurisprudence is currently a mess. Judge McConnell has very interesting and intelligent ideas about it.

11:13 AM  
Blogger Hatcher said...

geraldy,

No need to apologize for being overly critical. I appreciate benefitting from your obviously in-depth knowledge of the subject, even if it makes my efforts appear more amateurish (not hard to do).

My mistake on confusing McConnell's - I guess I'd still root for Michael if he can run an offense like Mo Cheeks.

11:28 AM  
Blogger Clupbert said...

Yeah, he's right will all that incorporation stuff.

12:51 PM  
Blogger Clupbert said...

"with", not "will, sorry

12:51 PM  

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