Skip to comments.North Carolina bill: The Constitution doesn’t bar us from making laws about religion
Posted on 04/03/2013 5:39:08 PM PDT by SeekAndFind
Perfect flame-war bait for a slow news day.
The bill itself doesn't mention a "state religion," although that power is implicit. The language is precise, and for a reason:
The bill reads:
SECTION 1. The North Carolina General Assembly asserts that the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion.
SECTION 2. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.
North Carolina wants to establish an official state religion? No, not really. (I think.) The GOP legislators who are floating this are needling the ACLU, which is suing a local board of commissioners for opening their meetings with Christian prayers. Can't have the state officially sanctioning a particular faith, right? Sure you can, says the NC bill: The First Amendment’s Establishment Clause applies only to the federal government, not to the states. Which is true, or was — Doug Mataconis is right that the Supreme Court has applied the Establishment Clause to state governments too (via the Fourteenth Amendment) for more than 60 years now. Unless SCOTUS is prepared to do something very unexpected to the constitutional doctrine of “incorporation,” the bill would be laughed out of court if it became law, which it almost certainly won’t. The bill’s sponsors are, I take it, mainly interested in making a symbolic point about federal encroachment, especially from the judiciary, on state sovereignty per the Tenth Amendment. And if you’re going to do that, prayer/religion is a smart choice of subject matter. Prayer in public schools has always polled well, and if the Supremes turn around and legalize gay marriage later this summer, this sort of Tenth Amendment argument will be popular among opponents.
Question: Has anyone seen numbers from major nonpartisan pollsters like Gallup on the separation of church and state? Polls have been conducted by advocacy groups but I’d prefer a less partial source. And I’d also prefer a narrower question. “Separation of church and state” is a gassy concept compared to asking specifically whether a state should be permitted to establish an official religion. This YouGov poll is interesting in showing a partisan split on whether separation should be “absolute,” but that’s not the precise issue here. The reason I ask is because when I saw the North Carolina story, I thought it looked like the sort of thing that Democrats would eagerly use as a wedge issue against the GOP (if, that is, the bill went anywhere). But a wedge only works if the majority’s on their side and I don’t know for a fact that it is because I can’t find a poll on point. Anyone seen one? If not, I assume we’ll get one next week thanks to Carolina.
“Given that Judicial Review is not a power given to the Court by the Constitution, and given the hash that the Court made in Dred Scot, the fact that the Court was not forever disgraced, it has become a tool whereby the national elite can avoid the political process.”
I remember reading Dred Scot and coming away with a completely different understanding of the ruling than the radical republicans took in driving their party to power.
For example I don’t see how the judge was saying African Americans could never be citizens as many radical republicans claimed. When I read the ruling it seemed quite obvious to me that all judge was saying(in a racist manner) was that The territory in which Dred Scot was living and claiming had freed him from bondage by virtue of being a anti-slavery territory, was in fact incapable of doing so to the Fifth Amendment due process clause.
That actually makes sense to me, because if you assume that slaves are property as was the assumption at the time then freeing them from their owner on the grounds that they were illegal would constitute a due process violation.
What Dred Scot should have done was make his case in the State of Illinois which suffered no such disability, and in which he had also resided with his master.
Instead the ruling was misconstrued by political hacks wishing to build a political party out of the rage of the anti-slavery movement. By implying the ruling was more signification than it was. If anything the ruling merely implied that Washington could not ban slavery in its territories.
The due process clause in the Bill of Rights applies only to the federal courts. Taney was of course operating in the context of the fugitive slave law which had strengthened the rights of slave owners. The rights of slave ownership varied state by state, even in the South, and many of the northern states no longer recognized it. But when I say the Court made a hash of it, I meant the terms of Taneys opinion. his obiter dicta. He was trying to settle a political issue in court.
“The due process clause in the Bill of Rights applies only to the federal courts. Taney was of course operating in the context of the fugitive slave law which had strengthened the rights of slave owners. The rights of slave ownership varied state by state, even in the South, and many of the northern states no longer recognized it. But when I say the Court made a hash of it, I meant the terms of Taneys opinion. his obiter dicta. He was trying to settle a political issue in court.”
I agree completely. The problem was the radical republicans pushed for the 14th amendment because they were concerned that Taney’s Obiter dictum was law. A ridiculous position premium upon the idea that the Federal court makes law.