Saturday, January 07, 2006

David Calvani on the Establishment Clause

Victor,

In your post "Angus Menuge on Dover " you are making an error about the establishment clause of the federal constitution.

I took the link in your post "Attacking ID with the wrong stick? " to the article by Alexander George. Professor George makes a similar mistake about the first amendment. I sent him an e-mail in which I told him this:

There is nothing in the constitution of the United States that forbids a state from establishing a religion. Yes, I know the federal courts disagree, but their rulings in this regard are a power grab. By arguing to the contrary in a public forum, you are helping the courts perpetuate their usurpations of authority.

The fourteenth amendment forbids the states to interfere with the "privileges and immunities" of a citizen of the United States. This is why constitutional rights like freedom of speech became binding on the states. But the non-establishment clause creates no privilege or immunity for any citizen at all. The immunity is for the states -- Congress cannot say anything at all "respecting an establishing of religion." Congress cannot create an official national religion, and it can neither forbid nor require a state to establish a religion. Nothing in the fourteenth amendment allows the logical leap that while Congress can't say anything about an establishment of religion, the courts can!

If you reread the first and fourteenth amendments I think you will clearly see that my argument is correct.

David Calvani

David: I've often wondered whether the separationist principle involved in the Lemon test would be in accord with the original intent of the authors of the amendments, and whether a "argument from original intent" could be used against it. Of course, that's the big issue in judicial philosophy these days. Of course, the Dover case isn't going any higher, since the school board was kicked out and the current one wants no part of this fight.

5 comments:

Jim Lippard said...

David's view is at odds with most constitutional scholarship, though Clarence Thomas agrees. (He's the only Supreme Court Justice who does.)

The 14th amendment incorporates all of the protections of the Bill of Rights as limitations against federal power into limitations against state power. 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.

See http://www.stcynic.com/blog/archives/2004/12/the_doctrine_of.php

Anonymous said...

So much for the notion that ID supporters like Mr. Reppert do not wish to establish a theocracy in this country.

Jim Lippard said...

More commentary on David's view, which specifically looks at the statements made by the 14th Amendment's author, John Bingham, regarding its intent:

http://www.stcynic.com/blog/archives/2005/12/federalist_blog_on_the_dover_r.php

Jim Lippard said...

And an explicit rebuttal to David's view from the Harvard Journal of Law and Public Policy:

http://islandia.law.yale.edu/amar/lawreview/1996Fourteenth.pdf

Jim Lippard said...

Actually, I wouldn't say that last paper is a rebuttal of David's view, it appears compatible with it.