Skip to comments.When Real Judicial Conservatives Attack [Dover ID opinion]
Posted on 01/09/2006 8:26:54 AM PST by PatrickHenry
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In fact, having re-read Curits, I think I know what Bingham was getting at, and your guy is completely missing the point. Bingham believed that the states were always bound to respect the Bill of Rights, as well other freedoms not listed there explicitly, but that prior to the 14th Amendment there was no legal way to enforce this. Thus the states were bound in theory not in practice. In this light, his quote make perfects sense. Of course, I'd have to read the whole speach in context to verify this, but your link doesn't help in this regard.
Did they try to stone you?
Don't bother going over all my posts (not that your'e inclined to), but I had, admittedly, worked myself into a frenzy and became long-winded and was a little flippant at this point because I didn't feel philosophy needed to be looked down upon in order for science to be what it is in its own right.
So I'll concede without reservation that Archimedes was indeed a superior scientist and engineer. I learned a little more about his combat engineer prowess tonight, thanks again.
When I posted:I'll take Aristotle for a greater understanding of the world. I should gone more along the lines in emphasizing my appreciation of Aristotle's advances in thinking in helping man consider the nature of being and reality.
He's probaly not real popular in the science circles due to his scientific missteps. Don't have the link for the following:
Aristotle lived before the age of specialization, so that he studied and lectured on every conceivable topic: physics logic, biology, literary criticism, psychology, astronomy, ethics, aesthetics, and metaphysics. What is now usually defined as philosophy, a knowledge of reality in its basic structure, a study of being as being, Aristotle sometimes terms first philosophy (a.k.a. metaphysics), although he uses the term "philosophy" also for the study of first causes and principles. Moreover, his Physics, to a large extent overlaps with what he defines as first philosophy. Now, of course, little of what Aristotle wrote on the natural and the life sciences is correct; in fact, the high esteem that Aristotle's works had in the middle ages was blamed for delaying the development of modern science. Whether what he says on first philosophy is correct is another question. Although one can ignore his more specific and empirical works as irrelevant to his philosophical views, there is no obvious starting point in expounding Aristotle's philosophy, since it all hangs together as an organic unity. A key to understanding Aristotelian philosophy is its central assumption that language reflects reality, in his case Greek; an analysis of linguistic categories gives access to ontology, the way things really are.
As a speech communication major, the communicative theory of reality, which has evolved from portions of Aristotle's work peeled away from his natural and life science errors, makes alot of sense for me personally. Language and perception always have the last say in what is real. I know some will give less than two s**ts about that.
I'm way off the reservation on both sides of the central theme of this thread so I'll quit. Hope I didn't torture.
LOL...if anyone had tried to stone me, because of my 'sinful' card playing ways, my daddy would have stopped them...that is because dad was always a cynic, and tho he loved the Bible, he realized that mere human men, even the minister, often got their interpretations wrong...besides daddy enjoyed having a few drinks, rolled his own cigs, and enjoyed a waltz around the room with mom...so his little girl playing cards was hardly a thing to be concerned about...
I suppose tho, that if the minister had stepped into our house, unannounced, he would have been shocked to see our 'sinful'(in his eyes) behavior...
The argument that religion must not be taught in science classes is nonsense. [Long digression into legal matters]
Awww, not this s**t again. For the second time, I never said that, and don't beieve it to be nonsense. Those were another poster's words within one of mine.
So please beam me the f up while your at it, Mr. Scott. And take the uuuhuumm, Admiral *snicker* to sick bay for his meds.
What strikes me is the complete lack of any indication by either the states or Congress that the 14th Amendment imposed the Establishment Clause on the states.
Suppose a state had maintained slavery AFTER the adoption of the 13th Amendment. Suppose a dispute involving slavery had been taken to that state's supreme court, and during the arguments no one (not the judges, not the lawyers for either side) had even mentioned that the U.S. Constitution now banned slavery. It's hard to imagine. Or imagine it happening on any other issue.
Yet there's a total void of activity on religious issues in the wake of the 14th's ratification. Congress moved to enforce the provisions we know are in the 14th Amendment. They did so quite aggressively and even took it to another level when they tried to ban PRIVATE discrimination against blacks, as opposed merely to government discrimination. Yet no one in Congress came forward with a bill to enforce the Establishment Clause against the states.
The states went about their business as if NOTHING whatsoever had happened vis-a-vis religion after the 14th's adoption. While states were rushing all over the place to either change their laws to comply with the new Reconstruction amendments, or to re-write their laws to find some way to get around them (e.g., replacing "whites only" voting laws with poll taxes, literacy tests, "white primaries", etc.). states calmly maintained their laws on religion as if nothing had changed.
Of course, it may also be that Bingham was something of an "eccentric" in his views. If you're correct that he believed the Bill of Rights had ALWAYS applied to the states (which it absolutely didn't) then it's not surprising he would claim the same thing after the 14th was adopted.
Not a single level of government seems to have agreed with him. Are you aware of any legislation from that era related to this issue? Was there any effort by Congress to exercise its clear 14th Amendment enforcement power by passing a religious establishment bill of some sort?
Thats what Fairman and Berger claim. However, Curtis demonstrates pretty convincingly that Bingham was well within the mainstream of GOP thought at the time.
Not a single level of government seems to have agreed with him.
His GOP colleagues did. It's true SCOTUS had ruled otherwise, but they viewed that ruling much the same way we view Roe v. Wade.
Are you aware of any legislation from that era related to this issue? Was there any effort by Congress to exercise its clear 14th Amendment enforcement power by passing a religious establishment bill of some sort?
Establishment of Religion wasn't high on their list of priorities, and they probably didn't think any states were guilty of establishment at the time. They were more concerned with issues like free speach. For example, they were very bitter about ante-bellum censorship of abolishionist literature in slave states and wanted to empower Congress to stop such attacks on fundamental rights by states.
Indeed, I should have been whacking Cicero over the head, not you. Indeed, I missed your first protestation of same in 466. That said, the text appears as your own. And it's not as if you don't know how to bold or italicize. And you've spent enough time "defending" the propostition by ridiculous smokescreens of evasion and distraction it that I don't care anymore.
If something is indefensible, whether or not it was you that said it, don't try to fake it. How hard is that?
Do you think it would be an establishment of religion to suggest in the public schools that life may have been designed by a deity? If I read your position correctly, you're arguing that the 14th did apply the Establishment Clause to the states, but the widespread practice of public school Bible reading, prayer, and direct aid to religious schools weren't an Establishment violation. If none of those are a violation, how could it be one to merely mention ID alongside evolution?
I don't know anything about Berger, but if you search on Fairman, you will reach an article about him on a site run by Stanford Law School. In that article you will find that he was basically the mentor of the late Chief Justice Rehnquist. It would seem that Fairman was a smart enough guy. We know that Curtis did not agree with him. However, in what objective sense can we conclude that Curtis is right and Fairman was wrong. If the evidence was so obvious, I don't think that Fairman and Rehnquist amongst others would have concluded otherwise.
It looks to me to be an area that Constitutional scholars can still disagree over, although the Curtis side seems to have the weight of SCOTUS decisions on its side at this time. The same can be said for the pro-choice side in Roe v. Wade, although many of us hope that a future court may someday decide differently.
Well, this one may be unsolvable. It's an interesting debate and Curtis surely has some good points to make.
The fact that the Supreme Court currently embraces his view doesn't carry much weight, though, since they've been headed in the wrong direction for about 50 years. :-)
Maybe Curiosity can answer this since he's read Curtis' book: Does Curtis ascribe to the ACLU interpretation of the Establishment Clause? Does he think it requires schools to be secular, crosses to be taken off city seals, Nativity Scenes taken from the public square, monopoly status for evolution, etc.?
Vade-o what's up with this hostility man? Just when I thought we had reached another level. Are you drunk this morning? One of those projecting types? Can't we all just get along?
You don't care anymore? You were the one than circled this back around unsolicited.
Indeed, I missed your first protestation of same in 466. That said, the text appears as your own. And it's not as if you don't know how to bold or italicize. Retro, baby, you're giving me a complex cause those look like italics.
Maybe spies are drugging me cause I'm just getting too close here....Yeah..Don't know anything...anymore...
If something is indefensible, whether or not it was you that said it, don't try to fake it. How hard is that? ???????? Mr. Clinton is that you?
With a good beat, that's a viable hit: Don't try to fake it, don't try to fake it, how hard is that? how hard is that?
Farewell then fellow Freeper! Good luck building Jurrasic Park some day. I'm sure I'll see you on plenty of other "conservative issue" threads, you not merely content lurking on crevo threads ready to sandbag those poor ID'rs for motives unknown?
You haven't hurt the perception that all antievolution argument is done by grownups misbehaving in public. In future, when confronted with contrary evidence and/or logic, tell the truth about what you can understand and remember. Can't hurt.
Actually...in the 57 years between the time the 14th Amendment was ratified and the time that it first held that one of the BOR was applied to the states by the 14th Amendment, the Court repeatedly rejected that argument. 31 Justices held, in different cases, that it did not...3 held that it did (and of those 3, one subsequently changed his mind). Also, a dozen cases were argued before the Supreme Court after 1868 before any lawyer even raised the argument that the 14th Amendment incorporated the BOR against the states.
The late Raoul Berger was one of the most published and acclaimed law professors and legal scholars of the 20th century...he was also a political liberal who lost many of his liberal friends when he published his first law review article picking up the arguments made by Fairman, Stanley Morrison and others that the Supreme Court, since the 1920's had, on its own initiative (and without any basis in the history of the 14th Amendment), turned the entire federalist structure upside down and gave the federal government the power to interfere in what had always been purely state issues.
I do not accept the idea that all of the Constitution is subject to any judge's "interpretation"...no matter how strained from the facts and how baseless. Making Constitutional review a subjective exercise has essentially destroyed the Constitution.
How did we arrive at these "interpretations" of the Constitution that seem to bear little relationship to the language of the Constitution or the history of the its ratification? Back in 1934, when the New Deal was having trouble in the Court for the obvious reason that it was mostly unconstitutional...the liberal Karl Llewellyn (a name familiar to any law student who took Torts) wrote a law review article entitled The Constitution as an Institution. It was one of the most influential law review articles ever written because it altered the way judges and lawyers viewed the Constitution. No longer would it be a document, analyzed like a contract, the purpose of which was to establish a framework for a federal government of limited powers...this Constitution served as an impediment to the designs of the socialists in the FDR Administration.
So Llewellyn argued that we actually have an "unwritten constitution" (presumably to be written by lawyer/judges in every case)...that the text of the actual Constitution is of "a little influence," but only "where it makes no important difference which way the decision goes." Llewellyn wrote: "[w]hatever one takes as being this working Constitution, he will find the edges of his chosen material not sharp, but penumbra-like (ahh...the origins of "penumbras"). And the penumbra will of necessity be in constant flux. In explaining how the Constitution restrained the power of government officials, he said it was "the job of the Court... to control the course of governmental practice by reference to an ideal not found in that practice, but in the nature of what our government should be...."To rely on the language of the Document and its 'intent' as a standard for constitutional interpretation, Llewellyn concluded, was to "offer a basis utterly self-inconsistent, unworkable, and heavy with the fragrance of a charnel-house."
All of that impressive-sounding but mostly meaningless gobbdly-gook (in which so many lawyers specialize), essentially means that judges need not be bound by the words of the Constitution or the clear intent of its framers...but rather, judges should do what they think is best
It was this type of illegitimate approach that allowed the federal government to pass the unconstitutional New Deal legislation, the Civil Rights Act of 1964, to view the Commerce Clause as the authorization to do anything and everything the federal government wants, etc, etc.
Of course, over time, unlike Llewellyn, judges have not explicitly stated they have license to just ignore the Constitution...but rather they pretend they're "interpreting it"...and after all...my "interpretaion" is as valid as yours, right? So, the Constitution has been interpreted right out of existence. And federal interference in state laws by dint of incorporation is just another example of how "learned Constitutional scholars" can ignore a clear historical record, and "interpret" the words "privileges and immunities" or "due process" as "really meaning" that the 14th Amendment was intended to apply the BOR against the states.
This is why Justice Scalia once said of Llewellyn and the approach to Constitutional law that he advocated, "at least they used to have the decency to admit what they were doing"
He doesn't talk about it in his book, so I don't know. I'm not aware of his having written any articles on the establishment clause either.
Fairman was a very smart guy, no doubt. The only way you can evaluate who is right and who is wrong is to go to the primary source documents and read them for yourself. Both Curtis and Fairman document their work extensively. All it takes is a trip down to a university library and a couple days to read through the materials. I did it back when I was in college.
If the evidence was so obvious, I don't think that Fairman and Rehnquist amongst others would have concluded otherwise.
First of all, Rehnquist, God rest his soul, accepted the incorporation doctrine and agreed with Curtis in this regard.
Curtis thinks Fairman came to the opposite conclusion because his article was written before there was much scholariship done on the ideology of the Reconstruction era GOP. Fairman was not aware, for example, that the Republicans of the time believed that the Bill of Rights already bound the states, with or without the 14th Amnt. Thus he misinterprets speaches in which Republicans unequivocally say that the Amendment will not change states rights. Fairman also did not understand that the GOP of the time was concerned with much more than securing the civil rights of blacks. They were very upset about ante-bellum slave state violations of abolitionist rights, such as right to free speach and fair trials, that were routine before the civil war. Making sure that states would never be able to do such things again was a big part of their motivation in passing the 14th Amendment. Fairman was not aware of this.
I don't know if the above are the reason Fairman came to the opposite conclusion, but it is fair to say that Fairman's protoge did find Curtis convincing.
Regarding Berger, I can't help but conclude he was not being honest.
It looks to me to be an area that Constitutional scholars can still disagree over, although the Curtis side seems to have the weight of SCOTUS decisions on its side at this time.
I'm not up on the latest scholarship in this area. I'm not a historian or a lawyer. However, when I reviewed the literature in college, it seemed to me that the scholarly consensus by the mid 1990's was solidly on Curtis' side. From the 1950's through the 1980's, however, the anti-incorporationists were clearly in the majority.
The same can be said for the pro-choice side in Roe v. Wade, although many of us hope that a future court may someday decide differently.
Actually, I think the scholarly community is now turning against Roe. Even left-wing legal scholars have argued that it was wrongly decided.
Berger was a great scholar, no doubt, but he was not infallible.
So long as it wasn't presented as a scientific alternative to Darwinisim. Unfortunately, that's exactly what the Dover board did.
If I read your position correctly, you're arguing that the 14th did apply the Establishment Clause to the states, but the widespread practice of public school Bible reading, prayer, and direct aid to religious schools weren't an Establishment violation.
So long as the bible readings and prayers weren't sectarian in nature, no. Direct aid to religious schools would be okay so long as the state did not discriminate against any religions, except those that have doctrines contrary to the public interest (i.e. Christian science, scientology, satanism, fundamentlist mormons, jihadist Moslems, etc). The safest way to do this would be a voucher system, which I believe SCOTUS has ruled does not violate establishment.
If none of those are a violation, how could it be one to merely mention ID alongside evolution?
Because ID is a sectarian religious doctrine with no scientific basis, rejected by many religions, whereas evolution is a scientific theory with a mountain of evidence behind it. To mispresent ID as a scientific theory as equal in status to Darwinism, therefore, tramples on the rights of those Christians who reject it as bad theology mascarading as pseudoscience.
I really don't see how it's any of the federal courts' business under the First Amendment (even if we accept the controversial argument that the Fourteenth Amendment applies the First to the states) to inject themselves into this political debate. Some religions say we evolved, some say we were designed. Science, despite all the bluster, doesn't know for sure. Leave it up to the local voters.
The solution, theoretically, would be vouchers. However, we all know what would happen in reality if the public schools were replaced by private schools. The ACLU and the evolutionists would announce that the vouchers are aid to the schools, so the private schools have to adopt the same secularist policies as the public schools. There's literally nothing that would ever restrain the evolutionists on this. If the private schools managed to somehow survive without vouchers, the evolution crowd would claim that the point where the school's private driveway connects to the city street is a "state benefit" and thus the entire school falls under secularist federal control.
It's obvious from these lawsuits that we're dealing with fanatics who simply can't conceive of a world where their view isn't protected from competition by government power. People like that don't give up easily.
Our only hope is to get judges such as Alito (whom I'm confident will join the Scalia forces on this issue) on the court.
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