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"Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude, and visionary aphorisms of government, requires to be guarded against with the most unceasing vigilance."
     -- Joseph Story
     Commentaries on the Constitution of the United States
     Book III, § 1857.

Wednesday, August 27, 2003

Since everybody's been taking swings at Alabama's Chief Justice, I thought I'd join the fray. The synopsis: Justice Moore is right as to the law, but wrong as to his fitness to issue the challenge.

The U.S. Supreme Court has made hash of the Establishment clause in the last few decades, at the behest of the ACLU and other common barrators. They've been able to get away with it, because no one pays attention, any more, to what "establishment" actually means in this context.

(It's not just religion. The Supreme Court has made hash of the entire First Amendment, and the combined effect of its rulings, especially in relation to freedom of speech, of the press, and of religion, amounts to an attack on civil society itself. But that's a topic for another post.)

Most persons could be forgiven for thinking that "establishment" as used in the First Amendment means the same thing as it does in, say, the phrase, "business establishment": They've never come across the fact that it has other meanings. If we assume that meaning, the best sense we can make of the Establishment clause is, "Government shall have nothing to do with religion, period." Those who contend for that interpretation ought to consider, though: If that's what Madison meant to say, and what the ratifiers meant to enact, well, it's a really odd way of saying it. Madison was better at legal draftsmanship than that; he was more than capable of saying such a thing clearly.

Lawyers and judges, on the other hand, should be expected to know the basics of their profession before they presume to practice. The word "establishment" arises from the Common Law, plucked from the phrase, "The Church of England as by law established." That word "established" did not mean a symbolic "this is the official church"; it meant that the law conferred secular powers upon the church. Here are some of the things that passed under that word "established":

  • Compelling a man to act as "conscience" dictate he should (this is the historical foundation of "equity"; it included, among other things, the probate of wills)
  • Accusing, trying, and convicting for offenses against religion (such as heresy and apostasy), or against public morals (such as not attending worship, or swearing in public), backed by the whole punitive apparatus of the secular law, extending even to the sentence of death
  • Secular recognition of, and enforcement of, the church's claim upon tithes, against both persons and real property
  • The intricate apparatus of "advowsons" (look it up if you're curious)
  • The bishops of the church sitting as members of the House of Lords
  • The right of the Archbishop of Canterbury to crown the monarch
  • Special disabilities imposed upon Catholic subjects (and another set of disabilities -- though without the same unremitting malice -- for Jews)
  • The saying or hearing Mass, unless within the home of an ambassador, made a criminal act subject to progressive punishments (for the easier enforcement of which, it was also criminal for Catholics to meet behind closed doors)
  • The sending someone abroad for religious instruction, and his returning to the realm after such instruction, both made capital offenses
This is just off the top of my head; there's lots more to the list. The unifying element is, the church commanding and exercising secular power.

Religious expression per se is no violation of any person's right, no matter who or what is doing the expressing. I am, as I have said before, an atheist; the expression of religious sentiments, whether private or public, does not, and cannot, harm me in any way. The Supreme Court to the contrary notwithstanding, bellyaching about "But I don't like it!" is not a claim of right any of the Framers would have recognized; it took a long time for the law to degenerate to the point of taking something like that seriously. What would be a violation of my right is an actual establishment of religion, which is to say, the government conferring secular authority upon a particular sect, and conferring benefits upon conformity, and disabilities and penalties upon nonconformity, with the doctrines of that sect. (Even here, we are speaking loosely: The actual violation of my right would arise from the church's least attempt to exercise that authority, and not per se from the government granting it, but, since it is ridiculous to imagine that government would vest authority anywhere without designing that it be exercised, we are justified in making the leap.) From the Framing right up until the Supreme Court started shoving the "freedom from religion" line down everyone's throat, this was the ordinary and acknowledged meaning of the Establishment clause. Government regularly mentioned God and religion in its official designs and acts, and the idea that anyone's right was violated thereby would have been met with ridicule. What the Federal government did not do (and what the States stopped doing as a matter of principle long before the Fourteenth Amendment offered the Supreme Court a pretext to force it upon them) was to confer any secular power upon religion.

This uniform understanding and uniform practice, extending over the best part of two centuries, stands in flat contradiction to what the Supreme Court now tells us the Constitution requires. The Court's current position, in brief, is, "Government may occasionally invoke religion, but only in small, unimportant matters, and even then only if it gives absolute proof that it doesn't really mean it." Even aside from the constitutional merits, this is ridiculous: Where in the canons of construction is any court of law, looking upon an act of government, allowed reach the conclusion that a clear meaning is not actually intended?

So we have it, as to the law itself, Chief Justice Moore is right, and the Federal courts are wrong. That does not mean, though, that he ought to have challenged the Federal courts. First, a judge should never be a litigant on any matter that may come before him in his official capacity; the parties that bring such a question before him would have just cause to impeach his integrity and impartiality. Second, a judge should not conflate his office with his person, as Moore did in purporting to act for the Alabama Supreme Court when the matter at hand was merely his own predilection; the public should never be confronted with the question whether official acts are really official acts. Third, a judge owes deference to the decisions of a superior court whether he agrees with the outcome or not; the public is entitled to the fullest possible reliance upon the Rule of Law. On all these points, Moore's acts go to diminish the public confidence in the courts, especially the court on which he sits; they show a serious lack of judicial character and demeanor; they show him unfit to continue in his office.

(While we're on the topic, I must acknowledge: While the Constitution explicitly protects the free exercise of religion, it does not protect irreligion. My atheism gets no nod from the First Amendment. I would hold, it is a matter of natural right, and I would condemn any action that government took against it, but "natural rights" does not invest courts with any power to strike down contrary legislation. My recourse, should I ever need it, must be to public argument addressed toward repealing such a law. It makes no difference that I think it should be protected; the fact remains, the First Amendment doesn't protect it, the Supreme Court to the contrary notwithstanding.)

-- posted by Clayton 8/27/2003 09:38:00 PM

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