Early this year in The American Thinker and in this column I discussed state marijuana legalization and federalism. I cautioned against advocates of freedom and federalism forming alliances with the “progressive” left on those issues in which the left claimed to favor free choice. I pointed out that that for that bunch”free choice” is nearly always a mere waystation to more coercion.
I wrote:
Today’s “progressive” movement is not controlled by the reasonable liberals of your granddaddy’s generation. Today’s “progressivism” is increasingly a totalitarian movement. In other words, a critical mass of its adherents genuinely believe that there are no limits to what they can make government do to the rest of us. As is true of other totalitarians, they see any victory won for freedom as merely opening the door for more coercion.
A new CBS story from Berkeley, CA demonstrates the point. Marijuana legalization was supposed to be about freedom. But the City of Berkeley, archetype of “progressivism,” has now decided to impose a marijuana mandate, forcing businesses to give away free pot.
The next step doubtlessly will be forcing the rest of us to subsidize pot, and finally forcing people to use it.
The hard fact is that these thugs see no limit to their use of government as a tool for pushing other people around.
The problem arises because when constituency politics often trumps principle. Just as liberal Democrats like to attack the oil and gas industry because it is perceived to support Republicans, so also conservative Republicans like to attack trial lawyers, who disproportionately support Democrats. Hence, many Republicans sign onto proposals to have Congress impose mandates on state court systems in the name of “tort reform.” Those Republicans tend to forget that trial by jury isn’t about protecting lawyers (no matter what their political party). Trial by jury is about protecting individual rights.
Andy Cochran’s article is thoughtful and worth reading. My own take on the same subject is here.
It increasingly looks like a “convention for proposing amendments” is really going to happen. The last 18 months have witnessed a flood of new state legislative applications for such a convention.
New Hampshire re-booted the process in 2012 with an application for a convention limited to considering a balanced budget amendment.
Late last year, the Ohio legislature passed a similar application by strong bipartisan majorities. The Tennessee legislature soon followed, by an overwhelming vote. Next came Michigan and Georgia. Florida then cured a defective 2010 application. The most recent action was in Louisiana, where the vote was not only bipartisan, but unanimous.
The balanced budget advocates now claim 24 of the 34 states necessary to force a convention, although my reading of the applications and the law puts the figure at 21. Either way, it is an extraordinary development.
In addition, four states have passed “faithful delegate acts” providing for discipline of convention commissioners, most recently Florida. (I’ll review the Florida law next week.)
There’s more: This year three states adopted the broader Convention of States application that permits the convention to consider amendments (but only amendments) that “impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of Congress.” Those states are Florida, Georgia, and Alaska.
In addition, the Vermont legislature adopted the only “progressive” application—a proposal to restrict the scope of First Amendment freedoms. No other states have followed suit, and there is little chance that many will. Whatever dissatisfaction there may be with “money in politics,” most people recognize that far greater problems are federal overreach and looming federal bankruptcy.
Last week I reported on Justice Thomas’ citation of my work in his concurring opinion in Town of Greece v. Galloway, a widely-discussed decision on the Establishment Clause of the First Amendment. This week, I’ll put the decision in context.
The meaning of the Establishment Clause (“Congress shall make no law respecting an establishment of religion”) has long been debated. Here are some of the hypotheses advanced:
* The Founders created a “Christian nation” in which the federal government could promote Christianity. The Establishment Clause assured, however, that the federal government would not favor any denomination of Christians over any other. This was the view of the great 19th century Supreme Court Justice and law professor Joseph Story.
* The Establishment Clause was adopted principally to protect the states from federal interference with their own established churches. This is Justice Thomas’ view.
* The Establishment Clause was adopted to protect the states from federal interference with their own established churches, but also to require the federal government to treat all religions equally. The Clause did not, however, place atheism or agnosticism on a par with religion. This conclusion is called “non-preferentialism.”
* The Clause not only protected the states from federal interference with their own established churches, but also required the government to treat all religious opinions, including atheism and agnosticism, equally. This formulation is called “neutrality,” and former Justice David Souter was one of its exponents.
* The Clause required the government to lean over backwards to avoid any entanglement or appearance of favoritism for religion. This is called “strict separation.”
There have been various modifications and blending of the views listed above, including a rather incoherent version called “accommodation,” a doctrine followed late in the 20th century by some of the more conservative justices.
Beginning in the 1940s (although with roots earlier), the Supreme Court issued a series of “strict separation” cases and imposed them on the states as well as well as on the federal government. It soon became evident that strict separation was both impractical and contrary to the actual meaning of the Establishment Clause. Accordingly, in the 1970s the Court began a long journey from strict separation, wandering through “neutrality” and “accomodation,” and toward non-preferentialism.
The Town of Greece case seems to complete this journey. Justice Thomas’ concurrence aside, all the opinions—majority and dissent—are squarely non-preferentialist. All acknowledged that the Town could sponsor prayers before Town Board meetings. The writer of the dissent, Justice Kagan, even affirmed explicitly her support for civic prayer. The only real dispute was over whether the Town had treated all religions fairly when selecting clergy to perform the invocation. The majority thought the Town had been fair, at least on balance. The dissent thought it had unfairly favored Christianity over Judaism and other religions adhered to by citizens of the Town. But that was a dispute over the facts, not over legal doctrine.
Several years ago, I wrote an article for the William and Mary Bill of Rights Journal entitled The Original Meaning of the Establishment Clause. As some other scholars had concluded before me, I found that non-preferentialism was, in fact, the intent of those who adopted the Establishment Clause: both protection of state established churches and equal congressional treatment of all religions.
This conclusion seems to be a little different from that of Justice Thomas: I believe the Clause was, in addition to a protection for federalism, a positive guarantee to all religious believers. Perhaps this is why Justice Thomas cited my writings on the Necessary and Proper Clause rather than those on the Establishment Clause!
In any event, with the Town of Greece case the Court’s Establishment Clause jurisprudence returns to the original meaning. Whether that jurisprudence should be imposed on the states is another matter, and Justice Thomas may well be correct that it should not.
That last question involves considering (in my opinion) not the Establishment Clause, but the “incorporation doctrine”—the doctrine by which the Supreme Court imposes nearly all of the Bill of Rights on state governments as well as on the federal government. The incorporation doctrine is a topic for another time.
Rob Natelson Cited Again at Supreme Court—This Time in a Religion Case
Rob Natelson Cited Again at Supreme Court—This Time in a Religion Case
I’m pleased to report that this past week the brilliant Justice Clarence Thomas cited my work on the Necessary and Proper Clause in his concurring opinion in Town of Greece v. Galloway, an Establishment Clause case that received wide publicity. This was the thirteenth citation in the third Supreme Court case in the past 11 months.
The Establishment Clause is that part of the First Amendment that provides that, “Congress shall make no law respecting an establishment of religion. . . ” The question at issue in the case was whether the Town of Greece (one of many places in upstate New York with classical Roman or Greek names), had violated that clause when it sponsored overwhelmingly Christian prayers at town council meetings.
Despite the language of the Establishment Clause (“Congress shall make no law. . .”), the Court has held for many years that the Clause applies to other branches of the federal government and to the states and all subdivisions of the states, including municipalities. Judicial application of parts of the Bill of Rights to the states is called the Incorporation Doctrine.
The Court ruled, 5-4 that the Town had not violated the Establishment Clause. The dispute between the majority opinion (written by Justice Kennedy) and the dissent (written by Justice Kagan) was more over the facts and the application of the facts than over basic doctrine. More on Establishment Clause jurisprudence next week.
Justice Thomas wrote separately to express his view that the Establishment Clause was designed primarily to protect official state religions (of which there were several at the Founding) from federal interference—in other words that the Establishment Clause was chiefly a protection for federalism, much like the Tenth Amendment. Since it was designed for the protection of the states, he argued, it was improper to apply it against the states. In other words, the Incorporation Doctrine should be used with some other parts of the Bill of Rights, but not with the Establishment Clause.
While I’m skeptical about the validity of the Incorporation Doctrine generally, I’m not sure that Justice Thomas is correct to read the Establishment Clause so narrowly. More on Establishment Clause doctrine and the significance of the Town of Greece case next week.