Tuesday, January 24, 2006

Calvani responds to the comments

I had asked David Calvani what he thought of the comments on the entry that I had posted from him concerning the establishment clause.

I just looked at the responses to my original note at

I find it very interesting that there are 5 comments and only two

The anonymous comment that labeled you a theocrat is what one should expect
form anonymous commentary: an assertion made without the slightest
justification. It is this sort of comment that would incline me not to allow
comments if I had a web log. There was nothing in my note to indicate that I
want a theocratic state (which I do not).

As for Jim Lippard of http://lippard.blogspot.com/ I find it most amusing
that he goes on criticizing me for 3 posts but then has to admit that the
article he linked to in comment #4 "appears compatible with" my view!

Mr. Lippard errs from the very first. He says, "The 14th amendment
incorporates all of the protections of the Bill of Rights as limitations
against federal power into limitations against state power." This is wrong.
The judiciary tried to incorporate all of the Bill of Rights into 14th
amendment jurisprudence, but soon abandoned this approach as unworkable. (Of
course, if the 14th amendment's privileges and immunities clause really
authorized this total incorporation, the amendment would not repeat the 5th
amendments due process requirement as a new obligation of the states.)

After rejecting the total incorporation doctrine, the courts invented their
'fundamental constitutional rights' doctrine, saying that only the
'fundamental' rights granted by the Constitution were incorporated. But the
Constitution makes no distinction between 'fundamental' and
'non-fundamental' rights! The courts should stick with the actual language
of the 14th amendment: the privileges and immunities of a citizen of the
United States.

Jim Lippards second assertion is even more absurd. He wrote, "It's pretty
clear that an official state religion would violate the First Amendment
rights of citizens of the state who are not members of that religion." How
so? Does the United Kingdom lack freedom of religion because of the
established Church of England? If the tyrants of China ever leave Tibet,
will Tibet be without freedom of religion because the head of Tibetan
Buddhism and the King of Tibet are the same person, the Dalai Lama?

The first amendment treats non-establishment of religion and freedom of
religion in two separate clauses. As far as the U.S. Constitution is
concerned, they are distinct and separate matters.

Why Jim conflates the two is seen on his own blog when he states "A loving
God? The unmitigated level of sheer evil in the world belies this claim ..."
The Constitution does not share Jim's fear and hatred of religious thought.

David Calvani

VR: David sent me a note telling me he now realizes that the comment on the Lippard blog was actually from Einzige and not from Jim. But he thinks Jim probably concurs.


Lippard said...

It doesn't look like Calvani actually followed the links in the comments and read any of the content referred to.

For me the key is his paragraph where he asks if England is without religious freedom because of the established freedom or if the Chinese ever leave Tibet will it be without religious freedom because the head of state is also the head of the church. He might also have asked whether Vatican City is without religious freedom because the head of the church is the head of state.

He's asking the wrong question. The question isn't are they *without any* religious freedom, but whether their religious freedom is less than we have in the United States. And the answer is clearly yes, it is less. When some citizens have their religion elevated to the status of official religion, those citizens who are not members of that religion are second-class citizens. In the case of the Church of England, it has decayed so much that the effect is negligible, but it points out an issue Calvani himself should be concerned about--the establishment of a state religion seems in many instances (throughout Europe) to have seriously damaged the religion.

Further, wouldn't Calvani be concerned if a state established atheism as an official religion? I would.

Anonymous said...

Of course Mr. Calvani doesn't want any of the states to establish theocratic governments. This is purely an academic argument on his part.
Yet, he denounces the supreme court for being tyrannical because it does not interpret the scope of the 14th amendment as he does!

Why such a harsh denunciation of the Supreme Court when there are no rights being infringed upon? Or does he really think states should have the right to establish theocratic style governments? And force religious teaching into the public schools?

It's difficult to understand why he thinks rights are being trampled upon by tyrants and then plead that he doesn't want to see those rights being practiced by the citizens.

Lippard said...

Is Calvani's position the same as Justice Thomas's, that the establishment clause creates no individual rights at all? If so, please see this critique by Douglas Laycock (Univ. of Texas Law School):