Tuesday, December 13, 2005

A Semester's Worth of Corrections in 800 Words

December 13, 2005

I’d like to take my last column of the semester to correct some of the more pervasive, persistent, and pernicious legal misunderstandings likely engendered by one of my fellow columnists. (My editors tell me I can’t say which one, but I imagine the regular and discerning reader will know of whom I speak.)* The author in question labors under the illusion that the function of the Constitution is to grant the government power; this is a patent falsehood. The document which forms the basis of American federalism does not operate to give the government license to do anything; the mandate of government is presumed to be unbounded. Instead, the purpose of the Constitution is to limit and apportion national power, creating organs to exercise the authority which it divides.

My colleague (loathe though I am to use that term with reference to one so willfully ignorant) not only misses this point, he or she refuses to acknowledge it. Apparently, this person missed out on high school civics and American history. Clearly we’re not dealing with a political science major here. This position has led my fellow columnist to some fantastically absurd conclusions. This writer has claimed at various points that state governments have no right to establish public schools and that making public transportation available “is directly contrary to Constitutional law.” I would invite my readers to examine the Tenth Amendment, which states quite simply, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” On re-reading, I don’t see any prohibition against either schools or transit in the Constitution. Oh, that must be the problem—reading!

The author in question further cites the existence of state churches and religious tests for state office up through the 1830s as evidence that the First Amendment does not impose a separation of church and state, but this is only further evidence of ignorance. Originally, the Constitution was assumed to apply only to the federal government. It was understood that the several states could undertake any measure they wished, provided it was not in violation of a direct and explicit Constitutional limitation of state power. That all changed when the 14th Amendment was ratified in 1868 (which was, incidentally, after the states abolished the practice of state churches on their own). Under a doctrine called Incorporation, the Due Process Clause of the 14th Amendment developed to extend the Bill of Rights, including the separation of church and state put forward in the First Amendment, to the states.

This happened in the courts through a series of cases starting in 1897 (Chicago, Burlington & Quincy Railway Co. v. Chicago), ramping up in 1925 (Gitlow v. New York), and continuing into firm establishment by the 1940s and 1950s. Even under the judicial philosophy known as Originalism, the Establishment Clause holds for the states, though Justice Thomas would contend its framers never intended it to be so restrictive. John Bingham, the person largely responsible for the wording of the amendment, regularly made remarks to the effect that the 14th Amendment would "finally" mandate that the Bill of Rights be enforced in the states. The legal development of the Establishment Clause in these cases is perfectly in line with the intent of those who passed it.

This writer wrote a letter to the editor calling me a “closet Constitutional scholar,” but there is nothing closeted about my interest in the law which draws together the fifty states and forms the basis of American society. I’ve been writing about it weekly, in one paper or another, for three years now. As a first year law student, I’m not claiming complete and total knowledge of American Constitutional jurisprudence, but this is pretty basic stuff. I hope those of you who doubt the accuracy of my research look into the matter for yourselves. For a democracy to work, the populace must be informed; otherwise all is merely “bread and circuses.” Go read the Constitution with your own eyes. Nothing beats starting at the source.

I promise to go back to talking politics when we return in the spring! The revelation of Alito’s repeated statements concerning his belief that the Constitution does not underpin the right to an abortion will be a fascinating thread in the upcoming confirmation hearings, and the downfall of Conservative icons Duke Cunningham and Tom DeLay are hopefully just the first buckets of chum in the political shark tank, leading inevitably to a feeding frenzy that will hopefully skeletonize the Republican party. Oh, who am I kidding; there’s always another head on the hydra. I hope everyone has a relaxing break, and in defiance of the outrage of the religious right over the most ridiculous little things, I wish you all Happy Holidays.

*Addendum: Now that I have no editors, I'm happy to say that the poorly informed loudmouth in question is Ben Hodges.

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