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When Real Judicial Conservatives Attack [Dover ID opinion]
The UCSD Guardian ^ | 09 January 2005 | Hanna Camp

Posted on 01/09/2006 8:26:54 AM PST by PatrickHenry

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To: curiosity; puroresu

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.


551 posted on 01/12/2006 3:03:11 PM PST by Binghamton_native
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To: Binghamton_native; curiosity

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.?


552 posted on 01/12/2006 3:16:24 PM PST by puroresu (Conservatism is an observation; Liberalism is an ideology)
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To: VadeRetro
And you've spent enough time "defending" the propostition by ridiculous smokescreens of evasion and distraction it that I don't care anymore.

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?

553 posted on 01/12/2006 5:07:56 PM PST by 101st-Eagle
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To: 101st-Eagle
Shuck, jive! Shuck, jive!

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.

554 posted on 01/12/2006 5:16:55 PM PST by VadeRetro (Liberalism is a cancer on society. Creationism is a cancer on conservatism.)
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To: Binghamton_native; curiosity; puroresu
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.

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"

555 posted on 01/13/2006 8:38:49 AM PST by Irontank (Let them revere nothing but religion, morality and liberty -- John Adams)
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To: puroresu
Maybe Curiosity can answer this since he's read Curtis' book: Does Curtis ascribe to the ACLU interpretation of the Establishment Clause?

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.

556 posted on 01/14/2006 11:00:36 AM PST by curiosity
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To: Binghamton_native; puroresu
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.

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.

557 posted on 01/14/2006 11:21:58 AM PST by curiosity
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To: Binghamton_native; puroresu
Just because SCOTUS ruled against incorporation immediately after the 14th Amendment was ratified doesn't mean it was right. The historical record provides overwhelming evidence that it was wrong. All the originalists on the court today, Scalia and Thomas (and Rhenquist, God rest his soul), all agreed with this proposition.

Berger was a great scholar, no doubt, but he was not infallible.

558 posted on 01/14/2006 11:26:34 AM PST by curiosity
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To: puroresu
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?

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.

559 posted on 01/14/2006 11:39:49 AM PST by curiosity
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To: curiosity

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.


560 posted on 01/14/2006 2:06:39 PM PST by puroresu (Conservatism is an observation; Liberalism is an ideology)
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To: puroresu
Some religions say we evolved, some say we were designed.

Wrong. Science says we evolved. Some religions insist on direct, supernatural design. Other religions do not set themselves against science, but embrace it.

Science, despite all the bluster, doesn't know for sure.

That's where you're incorrect.

561 posted on 01/14/2006 8:11:12 PM PST by curiosity
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To: curiosity

You wrote:

"First of all, Rehnquist, God rest his soul, accepted the incorporation doctrine and agreed with Curtis in this regard".

From Stanford Magazine (Alumni Association magazine), July-August 2005

http://www.stanfordalumni.org/news/magazine/2005/julaug/features/rehnquist.html

Throughout his career, Rehnquist has espoused a view of the 14th Amendment that emphasizes the rights of states to deal with issues ranging from capital punishment to various forms of discrimination, free of federal interference. As a law clerk for Justice Jackson, he told his boss in a memo that Plessy v. Ferguson, the 1896 decision that had upheld “separate but equal,” should be affirmed. (When questioned about the memo during a Senate Judiciary Committee hearing about his nomination to the court in 1971, Rehnquist said this was a restatement of Jackson’s views and did not reflect his own.)

In a voting rights case, Terry v. Adams, he wrote Jackson that “It is about time the Court faced the fact that the white people in the South don’t like the colored people; the Constitution restrains them from effecting this dislike through state action, but it most assuredly did not appoint the Court as a sociological watchdog to rear up every time private discrimination raises its admittedly ugly head. To the extent that this decision advances the frontier of state action and ‘social gain,’ it pushes back the frontier of freedom of association and majority rule.”

Rehnquist voiced similar views as a young lawyer in Phoenix, where he testified in 1964 before the city council against an ordinance that banned discrimination in public accommodations. As an assistant attorney general in the Nixon administration, and later as a justice, Rehnquist interpreted the amendment in a way that fueled his disagreement with the liberal Warren Court’s decisions advancing the civil rights movement and expanding the rights of criminal defendants.

His dissent in Roe v. Wade in 1973 spoke directly to the issue of states’ rights. “To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment,” he wrote. The drafters, Rehnquist continued, “did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.”

As late as 2000, writing for the court in a ruling that struck down a provision of the Violence Against Women Act permitting rape victims to sue their attackers in federal court, Rehnquist cited a string of late-19th-century cases that construed the 14th Amendment narrowly. They were still good law, he wrote, in part because the court that produced them “had intimate knowledge and familiarity with the events surrounding the adoption of the Fourteenth Amendment,” and hence of its framers’ intent.

From the above, it would not appear that Rehnquist sided with Curtis.


562 posted on 01/14/2006 9:34:43 PM PST by Binghamton_native
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To: curiosity

No one knows for certain that we evolved from micro-organisms. There is no certainty that micro-to-man evolution occurred. And if it did occur, no one knows for certain that God had nothing to do with it.

It's not Establishment of a religion to note those facts in a public building.

Suppose, for the sake of argument, that vouchers become the norm, the public schools close down, and everyone sends their kids to a private school. Half the public sends their kids to private schools that teach evolution, the other half to private schools that teach both evolution and ID.

What do you think would be the response of the two sides in this battle? My guess is that the ID side would leave the pro-evolution schools alone. But the evolutionists would try every trick in the book to force the schools that teach both to adopt "evolution only" education. They'd insist that vouchers are aid to the school. They'd insist that the public services the school receives (mail delivery, garbage collection) constitute government participation in the school's activities. They'd constantly nitpick at those schools with lawsuits and demands of government intervention until they either found a court to shut them down or bankrupted them with legal fees.

They'd never allow half the kids in the country to hear an alternative in school, because to them evolution is a religion...THEIR religion....and they demand a theocracy on this issue.


563 posted on 01/15/2006 7:11:20 AM PST by puroresu (Conservatism is an observation; Liberalism is an ideology)
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To: puroresu
No one knows for certain that we evolved from micro-organisms. There is no certainty that micro-to-man evolution occurred.

It is as certain as any other well-substantiated theory in science.

And if it did occur, no one knows for certain that God had nothing to do with it.

I agree, and no mainstream biology text I know of makes such a claim.

It's not Establishment of a religion to note those facts in a public building.

I agree (with regard to the second fact, the first one is false), but that's not what ID is about. ID, as presented in the Pandas and People textbook, is the scientifically false claim that certain biological entities could not have evolved in a Darwinian manner.

Suppose, for the sake of argument, that vouchers become the norm, the public schools close down, and everyone sends their kids to a private school. Half the public sends their kids to private schools that teach evolution, the other half to private schools that teach both evolution and ID.

I would have no constitutional objection to this.

What do you think would be the response of the two sides in this battle? My guess is that the ID side would leave the pro-evolution schools alone. But the evolutionists would try every trick in the book to force the schools that teach both to adopt "evolution only" education.

I certainly would oppose giving vouchers to schools that teach ID in biology class as an alternative to evolution, but I would not do it in the courts. I would lobby the state education boards and/or accredidation organizations to deny vouchers to schools that teach any pseudoscience, ID included. Giving vouchers to such schools is bad education policy. However, so long as parents have a choice to use their voucher at a school that does teach sound science, I can't see how such a policy, bad and harmful as it may be, would violate the establishment clause.

564 posted on 01/15/2006 3:28:16 PM PST by curiosity
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To: Binghamton_native
Sorry, but Rehnquist has explicitly stated that the 14th Amendment applies the bill of rights to the states on many occaisions. Here's just one of the many opinions he's authored that indicate this:

The Establishment Clause of the First Amendment, applied to the States through the Fourteenth Amendment, prevents a State from enacting laws that have the “purpose” or “effect” of advancing or inhibiting religion.

You can read his full opinion here:

http://www.law.cornell.edu/supct/html/00-1751.ZO.html

Your Stanford article mearly indicates that Rehnquist reads the amendment in question a little more narrowly than his colleagues. Nowhere does it provide any evidence that he rejects the incorporation doctrine, something no one even remotely familiar with Rehnquist's opinions would ever suggest.

565 posted on 01/15/2006 4:01:06 PM PST by curiosity
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