"No law respecting an establishment of religion."

I do like Brian Leiter's occasional takedowns of proponents of so-called "intelligent design," but I must agree with The Curmudgeonly Clerk (and Professor Bainbridge): Leiter is dead wrong to say that Justice Thomas should be consigned to "the lunatic fringe" for proposing that the Establishment Clause of the First Amendment doesn't apply to the states.

I can't add much to the Clerk's thoughtful analysis of Justice Thomas's opinion, save to stress that it really is very hard to see how, purely as a textual or historical matter, the Establishment Clause can be applied to the states. There are reasons why a majority of Supreme Court Justices have nonetheless held to the contrary, of course. And perhaps those reasons carry the day. (I don't pretend to be an expert.) But that is quite different from denouncing as lunatics those who disagree with the Supreme Court's rulings in this area.

Now, note that current Establishment Clause jurisprudence (i.e., it applies to the states) fits my policy and moral preferences. But further note that liking an outcome is not the same as pronouncing it legally correct, and questioning the other side's sanity. We are a nation of laws, not preferences; the means by which we reach a particular end matter. They have to matter, or everything is up for grabs.

(This is why, by the bye, Leiter's opening parade of horribles, while horrible indeed, wholly misses the mark.)

Oh, and for those keeping score, Justice Thomas' argument regarding the Establishment Clause is light years better than Professor Yoo's arguments in his torture memorandum. We're talking parsecs better, buddy.

Comments

[Navy Davy]

Von,

Leiter's comments are pure quackery -- typical of intellgentsia, professor types.

1. Should the Establishment clause of the First Amendment limit the authority of states, as it plainly limits the authority of Congress?

Many people think, Yes, myself included. But, that's a different question from:

2. Does the Establishment clause of the First Amendment limit .......

Here, the answer is less clear. Most legal scholars and judges say, "Yes." Hence, the continued vitality of the incorporation doctrine post civil war enactment of the 14th Amendment.

But some (including Thomas) say, "No." He says apply the words "Congress shall make no...." plainly, without inserting what you would like into the text.

That's always the temptation: Making judicial determimation that (wink, wink) just happens to coincide wih the policy you silently support, vis a vis making judicial determinations that are faithful to the text, even if the outcome ain't really what you'd like.

All Leiter is sayin' is:

1. I don't want religion in schools;
2. Thereore, I like the incorporation doctrine, 'cuz it prevents religion in schools;
3. Therefore, people who oppose the incorporation doctrine are lunatics, because they oppose what I like.

A pathetic, amateur argument, if ya ask me.

[von]

All Leiter is sayin' is:

1. I don't want religion in schools;
2. Thereore, I like the incorporation doctrine, 'cuz it prevents religion in schools;
3. Therefore, people who oppose the incorporation doctrine are lunatics, because they oppose what I like.

That's exactly right -- he's taking the "ends" he wants, and diving the means to get there. That ain't rule by law; it's rule by men. Quackery is the right word.

[Navy Davy]

I had no idea who this Leiter feller wuz, when I commented, but you piqued my interest so I checked him out -- a law school professor!
What a f$%@in' surprise!

I'm tempted to e-mail him and ask him, How many cases have you tried to verdict?

The answer will (likely) be zero.

That means (sigh), once again, we have the theoreticians groomin' and teachin' more theoreticians.

Ain't that a shame, when there's so much real-world learnin' to be had:)

Von, you are allright!

[rilkefan]

"Leiter is dead wrong to say that Justice Thomas should be consigned to "the lunatic fringe" for proposing that the Establishment Clause of the First Amendment doesn't apply to the states."

But he explicitly doesn't say that - twice.

[Bernard Yomtov]

Thomas' argument seems to rest on the proposition that the Establishment Clause, unlike the Free Exercise clause, does not protect an individual right. Hence it is not incorporated, so states are free to establish state religions.

How can that be? If the establishment of a state religion is NOT an infringement of individual rights, what is it? Suppose Massachusetts declares Roman Catholicism the state religion. What would be the effect of such a declaration? Surely it would imply some privileges for Roman Catholics, and some disabilities for others. This must imply interference with individual rights.

[Navy Davy]

But he explicitly doesn't say that - twice.

Here's Leiter:

Thomas, in solidifying his status on the lunatic fringe, argues that the Establishment Clause shouldn't even apply to the states.

Sure sounds like he said it.

[von]

But he explicitly doesn't say that - twice.

Rilkefan, re-read Leiter. He backs down a bit in the post I linked to (he's far harsher in a prior post), but he's still claiming Thomas is a lunatic.

[Chuchundra]

No, you are incorrect. Leiter's initial, emotional argument is facile, but later on in the piece he gets to the more technical elements of his argument.

[von]

How can that be? If the establishment of a state religion is NOT an infringement of individual rights, what is it? Suppose Massachusetts declares Roman Catholicism the state religion. What would be the effect of such a declaration?

Bernard: At the time the First Amendment was drafted and enacted, several states had state religions. (Massachusetts' 1780 Constitution, ironically, forbade Roman Catholics from holding public office.) See the following for (what appears to be, at first glance), a pretty good discussion: http://members.tripod.com/~candst/cnstntro.htm

[Phil]

I ditto Bernard's question -- which also occurred to me repeatedly when I read through Thomas's opinion -- how could the establishment of a state religion by one of the States not interfere with an incorporated individual right to free exercise?

[von]

Leiter's initial, emotional argument is facile, but later on in the piece he gets to the more technical elements of his argument.

Leiter's "technical elements" are exactly as Navy Davy portrays them: Leiter argues that the "means" (Thomas's interpretation of the Establishment Clause) are "lunatic" because he finds the "ends" distasteful. There's a pretty basic logical fallacy, there.

Now, Leiter does link (and I've linked -- at "of course" in my post) to a law professor who provides some evidence against Thomas's interpretation. But, note, he doesn't rely on that argument to show that Thomas is a lunatic.

[Bernard Yomtov]

Von,

Yes. I saw that in Thomas' remarks, but I thought the discussion was about how, or whether, the Fourteenth Amendment affected the interpretation of the clause, so that doesn't seem wholly relevant. That state religions existed does not mean that they didn't interfere with individual rights. It's just that, pre-incorporation, that was allowed.

As I understand it, incorporation means that, post-Civil War, the states are subject to the same Constitutional limits as the Federal government. So pre-Civil War they could have state religions, even though these patently infringed individual rights , but are now barred from having them.

[von]

how could the establishment of a state religion by one of the States not interfere with an incorporated individual right to free exercise?

Ahh, sorry, I missed Bernard's point. There is a point that the "establishment" of a religion (not incorporated) may interfere with another's "free exercise" of another religion (incorporated). The questions is where to draw the line.

Note that I am not an expert, but I suspect the line could be drawn much as it's drawn in England (which has an established religion, The Anglican Church, but also allows free exercise of other religions): State support for a religion is allowed; discrimination in public opportunity or services, however, is not.

[von]

Bernard:

As I understand it, incorporation means that, post-Civil War, the states are subject to the same Constitutional limits as the Federal government.

Not exactly. (Again, take note of my non-expert status.) Not all of the Bill of Rights were found to be incorporated; only certain individual rights were incorporated, and then on a varying standards (were they individual, were they fundamental to justice). See the following for an excellent discussion: http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/incorp.htm

From that website, here's the incorporation list:*

1st Amendment: Fully incorporated. 2nd Amendment: No Supreme Court decision on incorporation since 1876 (when it was rejected). 3rd Amendment: No Supreme Court decision; 2nd Circuit found to be incorporated. 4th Amendment: Fully incorporated. 5th Amendment: Incorporated except for clause guaranteeing criminal prosecution only on a grand jury indictment. 6th Amendment: Fully incorporated. 7th Amendment: Not incorporated. 8th Amendment: Fully incorporated.

*I'm not vouching for accuracy, but it looks right.

[Navy Davy]

Bernard,

As I understand it, incorporation means that, post-Civil War, the states are subject to the same Constitutional limits as the Federal government.

Generally, yes.

So pre-Civil War they could have state religions, even though these patently infringed individual rights , but are now barred from having them.

Not quite. Rights are not determined in a vacuum. They are determined in relation to governmental power. In Antartica, for example, there is no law against murder. So, if you step on that big 'ole piece of ice, you have lost several legal rights, that exist in the U.S. (But, of course, moral obligations are generally universal.)

So, pre-civil war:

1. Federal Gov't could not establish a religion. (But states could -- and did.)

2. Federal Gov't could not prohibit the free exercise of religion. (But states could -- and did.)

This may sound bizarre. But only if one believes that legal rights are metaphysical. They are not. They are jurisdictional and, often, are modified over time, depending on public policy and social mores.

[Bernard Yomtov]

Von,

Thanks for the explanation on incorporation. But this statement puzzles me:

State support for a religion is allowed; discrimination in public opportunity or services, however, is not.

What does "state support" mean here? Financial support? Then surely that implies discrimination in services. The state will help one denomination, but not another, build a new church or hire teachers for its schools. How is that not discrimination in services?

And if the support you mention is not financial, what is it? If you can't describe how a state religion would work, then how can you endorse Thomas' opinion?

[Phil]

In Antartica, for example, there is no law against murder.

In the interests of pedantry, there actually is. Pursuant to the U.N.'s 1959 treaty on Antarctica, to which the U.S. is a signatory, people who are on Antarctica are subject to the laws of their respective nations. Law enforcement for U.S. citizens in Antarctica is handled by the U.S. Marshals Service and the region is under the jurisdiction of the U.S. Attorney in Hawaii.

[Navy Davy]

Phil,

Interesting! What if a murder is committed by a citizen of a non-signatory country?

[rilkefan]

But he explicitly doesn't say that - twice.

"Rilkefan, re-read Leiter. He backs down a bit in the post I linked to (he's far harsher in a prior post), but he's still claiming Thomas is a lunatic."

von, reread what you wrote. You claimed that Leiter argues a->b, but (unless there's some special legal version of English which is quite incompatible with the Queen's English) Leiter actually says a_0+a_1+a_2+...+a_n+a->b. I think ND's making the same misrepresentation.

[Katherine]

what about the Privileges and Immunities clause?

[Phil]

Interesting! What if a murder is committed by a citizen of a non-signatory country

Hmmm . . . I'm not entirely sure they're allowed to be there at all, but my suggestion is we hunt them down and beat them with a large wrench.

Hey, it's a long way home from there, might as well make sure that deterrents are effective!

[Sebastian Holsclaw]

"But further note that liking an outcome is not the same as pronouncing it legally correct, and questioning the other side's sanity."

Not really true in modern non-textualist Constitutional jurisprudence. When you work so hard to separate yourself from the text, and refuse to identify what you are anchoring to, you can get any result that you desire.

[Phil]

The same is true of how Congress operates, Sebastian. Some Congressman -- I can't remember who -- every year attempts to introduce a bill that requires both the Senate and the House, for every piece of legislation, to identify the delegated power in the Constitution which allows them to pass it. It never even makes it to comittee vote. Every year.

Most of our government considers the Constitution to be a formality at best and a nuisance at worst. So it's no surprise that, when Congress won't operate within the constraints of their delegated powers, you sometimes get a Court that has to scramble a little to figure out what the hell they're even ruling on.

[Sebastian Holsclaw]

I believe we may have a contender in the understatement of the year award: "So it's no surprise that, when Congress won't operate within the constraints of their delegated powers, you sometimes get a Court that has to scramble a little to figure out what the hell they're even ruling on."

[wmr]

Navy Davy writes:
"I had no idea who this Leiter feller wuz, when I commented, but you piqued my interest so I checked him out -- a law school professor!
What a f$%@in' surprise!

I'm tempted to e-mail him and ask him, How many cases have you tried to verdict?

The answer will (likely) be zero."

According to this site:

http://www.supremecourthistory.org/myweb/justice/thomas.htm

he'd likely get the same answer from Thomas:
"Graduating in 1974, Thomas joined the staff of the attorney general of Missouri, John Danforth, a young Republican who would become his political mentor. The only African-American in the office, Thomas requested to work in tax law, not civil rights. When Danforth was elected to the Senate in 1977, Thomas took a job in the private sector, at Monsanto, a St. Louis chemical company. His work there primarily consisted of shepherding pesticides through government registration.

After two and a half years Thomas decided to go to Washington and work in politics."

[Bernard Yomtov]

Navy Davy,

So, pre-civil war:

1. Federal Gov't could not establish a religion. (But states could -- and did.)

2. Federal Gov't could not prohibit the free exercise of religion. (But states could -- and did.)

Yes. I understand. My point is this. Thomas claims that the second restriction was imposed on the states by the Fourteenth Amendment, because it deals with individual rights, but the first restriction was not, because it does not deal with individual rights. But I see no meaningful way in which a state could establish a state religion that would not infringe on the individual rights of non-adherents to the official faith. So Thomas' argument strikes me as silly at best.

[von]

Rilkefan, I'm hopefully gonna address your point in a later post.

[Steve A.]

Looks like Leiter has some additional thoughts on this subject.

http://webapp.utexas.edu/blogs/archives/bleiter/001482.html

[von]

Thanks, Steve A. I actually responded to that in a later post.