Wednesday, December 14, 2005

Constitutional Radicalism

Noah Graubart writes:
"Thomas' radicalism on this front is perhaps best demonstrated by his 2004 dissent in Elk Grove Unified School District v. Newdow, the infamous Pledge of Allegiance case. The majority of the Court held that Michael Newdow -- the father who sued over his daughter's school's practice of reciting the pledge in class -- lacked standing to challenge the pledge because his ex-wife, not he, was the child's custodial parent entitled to bring such actions. Thomas disagreed with that assessment. He also went one giant step further, arguing that the First Amendment's Establishment Clause does not even apply to the states. That this is a radical conclusion in itself is probably obvious (most scholars would also probably call it dubious, at best). What is more striking, though, is that Thomas felt it appropriate to make the argument at all. The majority did not even reach the merits of the case. The portion of Thomas' dissent discussing the First Amendment, therefore, was entirely gratuitous -- a fact that is indicative of his unwillingness to let sleeping dogs lie when it comes to precedent. Furthermore, Thomas' approach undercuts decades of precedent presuming that states are limited in their ability to establish religion. The school district did not even take this radical position, although the amicus brief of Phyllis Schlafly's Eagle Forum did (always a good indicator of the reasonableness of a position). As troubling as the idea of the Baptist State of Kentucky may be, it is equally troubling to know that Justice Thomas is so cavalier about introducing such an interpretation."

I'm bothered by the suggestion here that Justice Thomas has a radical view of the Constitution. I think it is certainly the case that Constitutional jurisprudence at this stage has said the First Amendment's Establishment Clause applies to the states. Justice Thomas apparently thinks this clause in the Bill of Rights does not apply to the states, and Mr. Graubart says such a conclusion is "radical" and suggests that other scholars would "probably call it dubious at best."

I'm concerned by this because it seems clear to me that such a position was the original meaning of the Constitution. After all, at the time the Bill of Rights was ratified there was at least one state (Mass. I think) that had an official government religion, and if my memory serves me, there were perhaps two other states with official government established religions. Ratification of the Bill of Rights did not make those state religions unconstitutional. And, this seems sensible to me since these are the words actually written as the First Amendment: "Congress shall make no law respecting an establishment of religion. . . " Surely, different language, e.g. "Congress, as well the states, shall make no law respecting an establishment of religion", could have been written that would have made the establishment clause applicable to state governments. But there are no such words written in my copy of the Constitution.

Further, as I understand the history of Constitutional jurisprudence, the Supreme Court's opinions for many years were precisely this -- the Bill of Rights does not apply to state governments. The reason the establishment clause is now thought to apply to state governments is that the 14th Amendment was ratified. The Supreme Court, over time, has come to the position that the 14th Amendment changed the Constitution to say, among other things, that the Bill of Rights no longer constrains just Congress, but it constrains state governments as well. Unfortunately, the 14th Amendment does not itself, include words that directly say something like: "The Constitution is now amended to include the constraints found in the Bill of Rights to state governments as well as to Congress." If you read the 14th Amendment, perhaps you will wonder whether ratification of the 14th Amendment really did change the Constitution so that state governments were to be constrained by the Bill of Rights.

Can an interpretation of the Constitution really be said to be radical if such a view was once, and for quite a long time, the clear view on which the Supreme Court reached opinions? Can it really be dubious to assert that the establishment clause does not apply to the states when the actual language in the Constitution mentions only Congress and not state governments? Perhaps we could more easily argue that when there are no specific words and clauses in the Constitution that say the establishment clause constrains state governments, that the present state of Constitutional jurisprudence in this area is "dubious at best?"

Perhaps when the Constitution is changed in ways that are not the result of the formal ratification process it is only to be expected that people will argue interpretations and even assert some interpretations (by others of course) are radical and dubious. But, it does seem difficult to me to assert that a view of the Constitution is radical and dubious when I have my own copy and the words I read sound very much like what is asserted to be radical and dubious.

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