Food for Thought

From a book review:

The first freedom of the First Amendment reads like this: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." Those 16 words were subject to only modest debate or litigation until the 1947 Everson decision when Justice Hugo Black, writing for the Court majority, held that they mean that "Neither a state nor the Federal Government ... can pass laws which aid one religion, aid all religions, or prefer one religion to another." This came as a great surprise to students of American history. In his magisterial 2004 study, "Separation of Church and State," Columbia law professor Philip Hamburger underscored the ways in which Black's long-standing animus toward Catholicism led him to turn the Religion Clause on its head. "Liberty of Conscience" is a determined defense of Black's stratagem.

In discussions of the Religion Clause, it is common practice to speak of an Establishment Clause and a Free Exercise Clause. In fact, both grammatically and in intent, there is one clause with two provisions — no establishment and free exercise. The first provision is in the service of the second: The reason the government must not establish a religion is that having an established religion would prejudice free exercise by those who do not belong to it. As numerous scholars have pointed out, however, the end of the Religion Clause, i.e., free exercise, has been subordinated since Everson to the means, i.e., no establishment. The result is that "the separation of church and state" (a phrase of Jefferson's that is not in the Constitution) has come to mean that wherever government advances, religion must retreat.

There is a school of constitutional law that holds that the entire fuss over the Religion Clause is misbegotten. The Founders intended nothing more, in this view, than to assure the states that the federal government would not interfere with the several state establishments of religion that existed at the time. The last state establishment (Massachusetts) was dismantled in 1833, so that's that, and the Religion Clause is no more than a historical artifact. This view is charmingly straightforward, but Ms. Nussbaum does not address it, and just as well, for, like it or not, the Religion Clause has, since Everson, been deeply and confusedly entangled in our law and politics.

The review may be more worth your while than the book itself, Martha Nussbaum's "Liberty of Conscience":

In contrast to "originalists," such as Justices Alito and Scalia, Ms. Nussbaum is an unapologetic defender of "the living Constitution." And, if you want to know what we now know about history, human behavior, and plausible accounts, you have only to ask Martha Nussbaum. There is an insouciant tone of being above partisanship in her distinctly partisan answers to all the aforementioned questions in the dispute. Her apodictic style aside, however, she has read broadly and imaginatively, with the result that there are more than occasional ideas of genuine interest.

More the pity, then, that for all her stressing the need for civility and mutual respect, she caricatures the views of those with whom she disagrees in a most unseemly manner. Again and again, they are described as acting out of fear, insecurity, ignorance, a theocratic desire to undo the Constitution, or all of these in combination. The chief villain, of course, is the hated "religious right." America is "under assault" and "facing a huge threat." "An organized, highly funded, and widespread political movement wants the values of a particular brand of conservative Christianity to define the United States." She ominously observes that "the current threat is not, or not yet, violent." Did someone mention fear and insecurity?

And then there's this, which is bound to raise blood-pressures, from the trouble-making Heather Mac Donald:

The campus rape industry’s central tenet is that one-quarter of all college girls will be raped or be the targets of attempted rape by the end of their college years (completed rapes outnumbering attempted rapes by a ratio of about three to two). The girls’ assailants are not terrifying strangers grabbing them in dark alleys but the guys sitting next to them in class or at the cafeteria.

This claim, first published in Ms. magazine in 1987, took the universities by storm. By the early 1990s, campus rape centers and 24-hour hotlines were opening across the country, aided by tens of millions of dollars of federal funding. Victimhood rituals sprang up: first the Take Back the Night rallies, in which alleged rape victims reveal their stories to gathered crowds of candle-holding supporters; then the Clothesline Project, in which T-shirts made by self-proclaimed rape survivors are strung on campus, while recorded sounds of gongs and drums mark minute-by-minute casualties of the “rape culture.” A special rhetoric emerged: victims’ family and friends were “co-survivors”; “survivors” existed in a larger “community of survivors.”

An army of salesmen took to the road, selling advice to administrators on how to structure sexual-assault procedures, and lecturing freshmen on the “undetected rapists” in their midst. Rape bureaucrats exchanged notes at such gatherings as the Inter Ivy Sexual Assault Conferences and the New England College Sexual Assault Network. Organizations like One in Four and Men Can Stop Rape tried to persuade college boys to redefine their masculinity away from the “rape culture.” The college rape infrastructure shows no signs of a slowdown. In 2006, for example, Yale created a new Sexual Harassment and Assault Resources and Education Center, despite numerous resources for rape victims already on campus.

Vote-Killer

I've said since about the middle of last year that every candidate running for president had already said something that ought to disqualify me from seriously considering him or her for the job. I've tried to tune those things out and think realistically about what they really can and will do.

But this one is looking to me like a vote-killer.

"[Some of my opponents] do not want to change the Constitution, but I believe it's a lot easier to change the constitution than it would be to change the word of the living God, and that's what we need to do is to amend the Constitution so it's in God's standards rather than try to change God's standards."

When Seward talked about a "higher law" than the Constitution, I think he was swept away by his love of his own rhetorical phrasing. It likely cost him the presidency. I think Huckabee, unlike Seward, probably means it. The penalty for that hasn't changed since 1860.

Look, I don't care if Huck thinks the world was made intact in Seven Days. I've just been reading that John Quincy Adams, a president I hold in high regard, was not convinced the Earth rotated around the Sun. I don't care about that, because Huck is not going to go into my kid's science classroom and pitch the teacher out the window and read Genesis.

But he is going to be in charge of enforcing the Constitution for at least four years, if he wins. And with appointing judges who will interpret it for many years to come. And there's an awful lot of starry-eyed Patrick Henry graduates out there.

Constitution Pipe Dream

[posted by Callimachus]

A couple weeks ago, Reader posted a link to someone's suggestion that it's time to sit down and re-write the U.S. constitution from scratch.

That idea comes around from time to time. Usually I want to urge the people who impulsively promote it (I don't mean my co-blogger to be in this category, by the way) to sit down in a quiet room and think about it for a minute:

I'm not a Believer, but if there's evidence that America is God's chosen nation, showered with His blessings, it's that we received our national government from the one generation in our history that had a leadership class steeped in political philosophy but also in practical action and vigorous leadership. It was the generation of Americans least beholden to the more enthusiastic, judgmental, and un-intellectual aspects of Christianity. It was the least partisan and most public-spirited we've ever been.

Look around you today for a Madison or a Hamilton. Hell, you'd be doing well to unearth a modern-day Gouverneur Morris. The only modern generation I'd trust with the task is the one that predominated in the political scene in this country from 1935-1955.

Yet undeniably our Constitution is an outworn garment, cut for another people in another time. We're no longer the scattered farming people that stood to be fitted for it. Based on their writings, the Founders would have expected us to have rewritten the thing several times by now, I suspect.

Here's my pipe dream: Beginning at some arbitrary date -- say 10 years down the road -- the nation will revert to governance by the Constitution in its original, 1787, as-passed form.

That will scare people. Good. Slavery won't be illegal? Votes for women not guaranteed? No equal protection? No direct election of senators? No First Amendment? No Fifth? No Second?

Because in the intervening 10 years, the nation will have the opportunity to craft its own set of amendments -- limit it to the current 27, if you like -- to modify this document. I'm not talking about great, big omnibus amendments. I'm talking about real, discreet changes.

Don't call the amendment-writing convention right away. Give people a couple years to study the old document, to see how it will work. Actually learn the machinery of government that was conceived in 1787. We'll have to understand it inside and out before we can begin talking about amending it.

And we'll have to think about the amendments not just in terms of remedying this immediate wrong or preventing that perceived threat. But as organic alterations to a functioning system of national life.

Do we need a bill of rights, or are such rights inherently protected? What did Madison think about that? Do you like the term "wall of separation between church and state?" Then write it in there (it's not there now).

Do we really need to limit presidents to two terms by law -- or was that a Republican rebuke of Roosevelt that intruded on the rights of the people to decide such things?

Do we want to enshrine rights to privacy, to reproductive choice, in the document? Then do so explicitly, not by discovering them in some hasty Reconstruction legal language meant to punish a particular collective behavior in the South.

But scan every proposed new amendment carefully for what could be sprung from it by future generations of courts.

Even if you limit it to the current 27, you have more to work with than is in there now: The 18th and 21st cancel each other out, for instance. Though I'd be tempted to leave them in as a standing rebuke to all attempts at legislating morality or social engineering.

It would be a national mud wrestling fest; it would consume us like a decade-long NCAA tournament; and in the end, the spirit of the two political parties probably would make a shambles of it.

Which is why I'd hope to see a well-written amendment to limit the power of political parties.

Irresolution

[posted by Callimachus]

So, let's say you're one of the Americans who just flat out thinks the Iraq war is wrong, unjust, illegal, lost, or some combination of all four, and that George W. Bush's proposal for what to do next is just hopelessly wrong-headed.

How do you feel about a Congressional resolution that opposes Bush's plan rhetorically, but explicitly takes off the table the one ironclad check on presidential war powers the Congress still holds?

In a deal struck last night, there will be only one resolution on the Senate floor, rather than two competing ones. It's basically the resolution Virginia Republican John Warner crafted, with some language that sets benchmarks for progress in Iraq and vows that funds won't be cut off for troops in the field.

If I were on that side I'd call it chickenshit legislation. And, I might add, when all's said and done what have you got except a cover for your ass that, incidentally, offers rhetorical cover for the jihadis and the Iranian provocateurs in Iraq?

Just as someone who happens to believe in the Constitution, no matter how far we've drifted from it, I have to ask, "Are you serious about being a Senate, or not?"

Right to Privacy

This is what I'm talking about.

Don't torture the Constitution to make it confess to a "right to privacy" that's not there. Don't make abortion legally protected based on Thad Stevens' Reconstruction amendments. Most Americans want a right to privacy; most accept some form of legalized abortion. Make it explicit: pass an amendment.

Problematically, a right to privacy is not explicitly mentioned anywhere in the U.S. Constitution. The majority argued that the right was among the “unenumerated” rights implied by something called the “penumbrus,” which sounds like something that a sodomy law would prevent you from touching with your tongue.

... I find myself wondering why we don’t just put it in there? If the Republicans can propose a constitutional amendment banning gay marriage, can’t the Dems propose a “Right to Privacy” amendment? Since the RTP is popular (unlike the anti-gay marriage amendment), the Dems should put it out there and let the Republicans run around the country explainging why they're against a right to privacy—not a winning position. Then, once it passes, we’ll be spared the debate over whether or not the RTP is in there every time a conservative is nominated to the Supreme Court.

The Right to Privacy Amendment—c’mon, Harry Reid, Barbara Boxer, Ted Kennedy, Patty Murray, Barak Obama! Propose it!

Hint: You'd get a lot of independent and moderate Republican support.

[Hat tip: Sully]

States and Rights

Left 2 Right has an interesting post about "strict construction" and Constitutional language, pegged to the phrase "separation of church and state."

The point of it is the old one that Constitutional language is just dead letters until illuminated by judicial interpretation. Old, but well-taken.

There's another point I'd raise, though. I would have done it in the form of a comment, but I can't seem to make the comments work on that site.

When the Constitution and the Bill of Right were made, they restricted, only the power of the federal government. The individual states, if they chose, could restrict any of the rights delineated in the Bill of Rights. And in fact they did. Massachusetts and Connecticut, for instance, taxed all their citizens to support the state-established Congregational church. South Carolina restricted the circulation of abolitionist newspapers.

As difficult as this is to accept today, it is consistent with the model of government the Framers had in mind: a balance of powers between the people, the states, and the federal authority. The Civil War and the Reconstruction amendments swept away this United States and replaced it with the one we have now. The equal protection clause, in the 14th amendment, eventually extended the federal protections to all citizens. But that was not the work of Madison and Jefferson. Our true founders, in modern America, are Thaddeus Stevens, Charles Sumner, Joshua Giddings -- men much narrower of mind, more passionate for control, and less celebrated than the men of 1776 and 1787.

Today, the old America is a historical memory. But it is impossible to talk about "strict construction" without bearing it in mind. When Madison wrote the Bill of Rights (a task he considered a waste of time), he was in no sense setting out a set of universal human rights for American citizens. He was telling the federal government certain things it was not allowed to do.

There was a general tendency among Americans in those days to regard these as natural rights. And many states did protect them. But that is not the same thing as saying they are Constitutionally ordained as such.