Playing With Constitutional Fire

A few days ago I broke down a case from the Ninth Circuit permitting sectarian prayers at the opening of city council meetings for a city in California. In 2011, the Fourth Circuit reached the opposite conclusion with respect to a North Carolina county. And some legislators in North Carolina are hopping mad, and they’ve resolved to do something about it. Something with a lengthy historical pedigree, something which raises the hairs on the back of my neck in wariness.


The proposed resolution (not yet passed into law) called H494 isn’t actually anything particularly new or novel. It’s part of a movement that seeks to revise the existing understanding of the Supremacy Clause and the Tenth Amendment. While backhandedly apologizing for the association of the doctrine of nullification with the historic evil of slavery, contemporary nullification advocates insist that the legal maneuver of a state interposing its local veto on Federal laws remains a viable component of the Constitution.

I’ve seen this movement before. Fringe stuff, usually. It got some prominence during the debate about Obamacare, but this is the first time I’ve seen this idea deployed in pursuit of alloying religion and government.

Why do I call this “fringe stuff”? Because there is ample law, in the Constitution and in caselaw interpreting it, establishing that a state may not simply override a Federal law. Let’s start with the text of the U.S. Constitution itself:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. U.S. Constitution, Article VI.

While nullification advocates have been taught how to do a glib tap dance when that part of the highest law of the land is raised, in my opinion, the Supremacy Clause is an ace serve. A state’s legislature may modify a state’s constitution or laws, but it may not do so in a manner which contravenes Federal law, including the Federal Constitution. And it turns out I’m not the only one to think this and this school of thought also has a lengthy historical pedigree — and a stronger legal one.

The decisive blow to the doctrine of nullification came in 1859, at the hands of none other than Chief Justice Roger Taney, in support of the Fugitive Slave Act. The state of Wisconsin had, through its Supreme Court, purported to nullify the Federal Fugitive Slave Act so as not to return escaped slaves, and the Supreme Court said, “No way. Federal law is Federal law, which means it’s the same everywhere, even if you don’t like it, Wisconsin.” Well, I’m paraphrasing rather freely there. What the Court actually said was quite a bit lengthier:

…the supremacy thus conferred on this Government could not peacefully be maintained unless it was clothed with judicial power equally paramount in authority to carry it into execution, for if left to the courts of justice of the several States, conflicting decisions would unavoidably take place, and the local tribunals could hardly be expected to be always free from the local influences of which we have spoken. And the Constitution and laws and treaties of the United States, and the powers granted to the Federal Government, would soon receive different interpretations in different States, and the Government of the United States would soon become one thing in one State and another thing in another. It was essential, therefore, to its very existence as a Government that it should have the power of establishing courts of justice, altogether independent of State power, to carry into effect its own laws, and that a tribunal should be established in which all cases which might arise under the Constitution and laws and treaties of the United States, whether in a State court or a court of the United States, should be finally and conclusively decided. Without such a tribunal, it is obvious that there would be no uniformity of judicial decision, and that the supremacy, (which is but another name for independence) so carefully provided in the clause of the Constitution above referred to could not possibly be maintained peacefully unless it was associated with this paramount judicial authority.

Accordingly, it was conferred on the General Government in clear, precise, and comprehensive terms. It is declared that its judicial power shall (among other subjects enumerated) extend to all cases in law and equity arising under the Constitution and laws of the United States, and that, in such cases, as well as the others there enumerated, this court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as Congress shall make. The appellate power, it will be observed, is conferred on this court in all cases or suits in which such a question shall arise. It is not confined to suits in the inferior courts of the United States, but extends to all cases where such a question arises, whether it be in a judicial tribunal of a State or of the United States. And it is manifest that this ultimate appellate power in a tribunal created by the Constitution itself was deemed essential to secure the independence and supremacy of the General Government in the sphere of action assigned to it, to make the Constitution and laws of the United States uniform, and the same in every State, and to guard against evils which would inevitably arise from conflicting opinions between the courts of a State and of the United States, if there was no common arbiter authorized to decide between them. Ableman v. Booth, 62 U.S. 506, 517-519 (1859).

I know, TL/DR. Chief Justice Taney is a deeply ambiguous and hugely important figure in the Supreme Court’s history, but a master of pithy prose he was not. His long passage from Ableman has the benefit of recalling the legal, political, and governmental chaos that was the United States governed by the Articles of Confederation, which is the reason the Constitution was implemented in the first place. And deeply flawed though he was in many ways, Taney was always quite clear that he followed in his predecessor’s footsteps in insisting that the Supreme Court was just that, supreme.

Hopefully, we can all agree that slavery was odious and the Fugitive Slave Act was one of its odious legal implements. We need not praise, endorse, or affirm slavery in order to realize that Taney was right about the underlying point — states can’t pick and choose what Federal laws they will comply with and which ones just aren’t in effect. If that were the case, we’d have no national government at all; we’d be back to the Articles of Confederation.

So I’ll offer modern nullification advocates a rhetorical compromise: I won’t accuse you of legally defending a possible return to slavery if you won’t accuse me and my fellow nullification opponents of the same thing. We believe in the principle of charitable interpretation around here, and that’s an application of it.

And we don’t have to rely on a case of highly suspect moral foundation of nullification’s falsity anymore, since the Supremacy Clause was vindicated more recently in service of racial integration. In Cooper v. Aaron, 358 U.S. 1 (1953), the state of Arkansas, acting through a school district in Little Rock, unilaterally interposed a delay on court-ordered desegregation. Very generously, the Supreme Court said that the school district was acting in good faith because integration was indeed logistically difficult. It was less kind to the Arkansas Legislature, which had created state-level statutory obstacles to it, but the result was the same: nullification and interposition are out. They are inconsistent with the Constitution, particularly the Supremacy Clause and the Fourteenth Amendment.

Where the nullification movement has its strongest intellectual play is in questioning the validity of the incorporation doctrine. The Fourteenth Amendment is not explicit about the concept of incorporation. Traditionally, this doctrine is traced back to the case of Gitlow v. New York, 268 U.S. 652 (1925) although some see its basic origins in Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897). CB&Q Railroad addressed takings, finding that when a state condemns land, basic notions of due process in the Fourteenth Amendment require that it pay fair market value despite the lack of any explicit state law requiring it do so; Gitlow addressed publication of an anarchist manifesto that ran afoul of state antisyndicalism law.

Now, there is little serious contention other than that the Fourteenth Amendment does apply to states:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. Const., Amend. XIV, Sec. 1.

But the manner in which this language was used as the “hook” for applying the Federal Constitution’s First Amendment to protect the speech in question was done with surprisingly weak language in by the Gitlow Court:

For present purposes we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States. We do not regard the incidental statement in Prudential Ins. Co. v. Cheek259  U.S. 530, 543 , 42 S. Ct. 516, 27 A. L. R. 27, that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as determinative of this question. Gitlow, 268 U.S. at 665.

Justice Harlan, writing for the Gitlow Court, assumed that free speech is a liberty interest, and therefore that it is subject to the due process clause of the Fourteenth Amendment. While I think the reasoning is right — free speech is indeed a liberty protected by the Constitution — I’d have preferred to see a more robust intellectual foundation laid for that concept. That foundation got back-filled in with later case law to my satisfaction, but by then the doctrine had already been put in place.

So the sponsors of North Carolina’s law look back to John Marshall’s proclamation in Barron v. Baltimore 32 U.S. (7 Pet.) 243, 250 (1833) that the Bill of Rights does not apply to the states, and the Tenth Amendment dovetails to support that idea:

[The Bill of Rights] demanded security against the apprehended encroachments of the General Government — not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.

If Gitlow’s interpretation of the Due Process clause of the Fourteenth Amendment is wrong, then Marshall’s opinion in Barron v. Baltimore is still right, and the Bill of Rights does not apply to the States, and the proposed resolution declaring that North Carolina can Establish a state religion if it chooses to do so and its own Constitution does not forbid it, is in all likelihood legally correct.

On the other hand, if the First Amendment has been incorporated to the states via the Fourteenth Amendment’s Due Process Clause, then, North Carolina may not Establish a religion, and the Fourth Circuit’s opinion indicating that the use of sectarian prayers is an Establishment is binding law restricting the ability of the state government and its subdivisions to thus pray by virtue of the Supremacy Clause, until and unless that ruling is overruled.

So that’s the pressure point — does the incorporation doctrine hold intellectual water?

Ultimately, in order to say that it does not, you have to either 1) say that free speech is not a “liberty,” or 2) focus exclusively on the “states” language in the Tenth Amendment, and ignore that powers are also reserve to “the people” as well as ignoring that the people, directly and exclusively, reserved all unenumerated rights to themselves in the Ninth Amendment.

Regular Readers may recall that I have gone to some pains in the past to distinguish “rights” from “powers.” People have rights, governmental entities have powers. A “right” is the ability of an individual to act autonomously and without interference or reprisal by the government. “Power” is the ability of a governmental entity to restrict, control, or prohibit individuals from engaging in certain kinds of actions. Necessarily, where rights end, powers begin. There are reasons I go through this intellectual work when I approach Constitutional law.

One of those that is because something like free speech, or freedom from an Established religion, is vulnerable to attack from all levels of government, not just Federal. The Revolution was undertaken, at least ostensibly and I still believe that it was undertaken with a strong degree of sincerity, to vindicate individual rights. The Framers were intellectually steeped in the legal and philosophical concept of “natural rights” inherent in the human condition; the Declaration of Independence is a ringing endorsement of them (particularly as applied to the sphere of fair criminal procedure); and the Constitution and subsequently the Bill of Rights were drafted to create a government which would not extend its power into them.

I need not embrace the concept of inherent natural rights (a philosophical matter upon which I am presently agnostic) to fully embrace the concept that as a culture, one of our most enduring ideals is that however they are derived, individual people have these rights and the basic purpose of the government is to protect them. Should the government intrude upon them instead through the overreach of its powers is a perversion of the reason the United States of America exists in the first place.

If free speech is a right that inures to an individual, then the government at all levels exists for the purpose of protecting that right. The government at all levels needs to have a damn good reason for exercising its power upon that right. The vehicle for the government to demonstrate that damn good reason, if one exists, is “due process.” An articulation of a justification for the restriction of an individual’s autonomous actions, called a “charge.” An opportunity to rebut the truth of that charge and the validity of the justification, with assistance of legal counsel and the ability to present evidence, at the option of the individual whose autonomy is to be restricted. A test of the truth of that charge and the validity of the justification before a disinterested and fair decision-maker. Enforcement of the result of that decision regardless of the degree to which that decision pleases the authorities. And wherever possible, all of this occurring before the individual’s autonomy is actually restricted.

If we are going to say free speech is a right inuring to an individual then we must say that, if nothing else, the Fourteenth Amendment means that an individual whose free speech is to be restricted is entitled to due process before that happens. Which means Justice Harlan was right — free speech is indeed a liberty, a freedom, a right — and therefore it is a limit on the extent of a state’s power, not just the Federal government’s power. Incorporation is justified. Incorporation becomes an inevitable, inescapable outgrowth of the basic concept of limited government.

Which is why I conclude that North Carolina’s H494 is a proposal to declare the Constitution and the Union invalid. If North Carolina can opt out of Federal laws it doesn’t like, then it can opt out of the Fourteenth Amendment nor the Supremacy Clause when it doesn’t like them, either. That makes North Carolina an autonomous sovereign nation unto itself, which is simply not the case, and that is why this sort of bill disturbs me. States are important, and the history of states as having once been very much like (although never quite exactly the same as) autonomous sovereign nations is significant too. But it is manifestly not the case that states are autonomous sovereign nations now.

H494’s authors may sincerely think they’re protecting the rights of public officials to worship as they choose (see my earlier point that “City Hall is not a church” about that) and I’m not going to suggest that they’re advocating a return to the days of slavery just because they’re relying on a doctrine that was used to defend slavery in the historical past. They are playing with a different kind of fire than that, although it is still fire and it is still very dangerous and I am far from convinced that they understand what they are doing. Charitably, I’m pretty sure nullification advocates don’t want another Civil War, but they may want the United States to legally and peacefully transform into something more like the European Union or Canada.

But even ascribing those best of intentions to them, they are nevertheless re-opening the structural legal arguments which have been refuted, time and again, over the course of American history from the Framing of the Constitution forward, and which should have been considered finally and completely resolved after four years of bloody, awful Civil War. To the extent that there was any residual validity to the Constitutional claim that states have the power to nullify Federal laws, that ship sailed a long time ago, and I say the port should be closed to its return.

Is nullification heresy to the modern Constitutional scholar, to the modern patriot? Yeah, it kind of is. The United States is one nation indivisible, not fifty nations confederated, and it has been so since 1789. Let us hope, then, that H494 dies an unlamented death in committee and does not become Zombie John Calhoun, risen from the grave to once again proffer the tissue of justification for those who would bend local governments to behave lawlessly.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. Troubling stuff Burt.

    One question, if North Carolina keeps violating the Constitution, what can the Supreme Court actually do to them? Sure, they can declare the nullification unconstitutional, but what if the council keeps on making these prayers?

    • Well, let’s be clear. H494 is still a bill; it is not yet the law of the state of North Carolina. Maybe it will pass into law, maybe it will not. Until and unless it does, this is only a concern to monitor, and not a live controversy.

      Some sort of prayer before local governmental meetings is permissible under Marsh v. Chambers. I don’t like it, but that’s the law. It looks like there is an actual split of opinion between Federal Circuit Courts concerning whether sectarian prayers (e.g., one ending with the phrase “…This we pray in the name of the only Son of God, Jesus the Christ”) are permissible. It may take SCOTUS to reconcile those differing opinions.

      So before we go accusing local government officials in North Carolina of violating the Constitution, I think we need more evidence. I’ve got no evidence (one way or the other) that since the Forsyth ruling was handed down from the Fourth Circuit, that any local or state government has violated that ruling. What we have here is a couple of state legislators suggesting that the state itself violate the Constitution.

      That’s disturbing enough.

      • Yes indeed. As a citizen of North Carolina, I’d like to think that this bill is going to go exactly nowhere but the 2010 election and subsequent gerrymandering has given the radical right a fair amount of power here. This kind of stuff makes me want to bang my head against a wall.

        • As another citizen of NC, I’d like second all of that.

          • You could be a little bit more clear about whose head you want to bang against the wall . . .

        • Bills like this almost certainly die in committee. They are largely meant to be the legislative equivalent of shaking your fist in defiance and are symbolism.

          • This is true, of course, and a reasonable prediction for this particular bill. Such bills also reflects a mindset, though, and one that is more pernicious and dangerous than can be completely ignored: one that allows people to re-mold reality by fiat and denial, so that their personal preferences become permissible despite powerful Constitutional obstacles to them. Note below we have someone insisting that the Fourteenth Amendment was never ratified. That’s either performance art, or someone sincerely believes it to be true. If the latter is the case, it’s not quite something that we can simply relegate to the dustbin of ideas so bad not even state legislatures will seriously entertain them. It’s intellectual crabgrass in the lawn of the body politic: ignoring it will not make it go away.

          • Burt,

            I agree with you. When Mike pointed this out in another post, I said I had a hardtime determining how much this was meant to be sincere or just read meat.

            My personal view is still that The Paranoid Style in American Politics is the best essay ever written about American Politics. It contains almost anything a person needs to know about our crazies.

            People like the author of this bill and the guy below have been around since the Colonial Days.

  2. The Fugitive Slave Act did not, by the way, impose a new requirement on the free states. It enforced this bit from Article 4, Section 2 of the Constitution:

    No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

    Taney really had no choice but to overturn state laws that conflicted with this. By the way, don’t let any Founder-worshippers tell you that the Constitution did nothing to enable slavery. It did, and the evidence is right there.

    • Of course it did, which is why the Tea Party hacks excised the parts of the Constitution pertaining to slavery from their reading of the document in Congress.

      • If they had read it, there would be people accusing them of endorsing slavery. Just say “I don’t like the Tea Party.” It’s much more concise and coveys exactly the same amount of information.

        • They think they’re Peter Falk reading us the Good Parts Version and hoping we don’t ask “Is this a slavery book?”

        • I don’t like the tea Party. But that doesn’t mean they aren’t hypocritical for leaving out those portions of the Constitution. Of course, leaving them in might negate quite a bit of their originalist position on the document.

          • Those parts of the Constitution are rendered null and void by the thirteenth amendment. Although we’re certainly not happy with all of the Amendments (looking at you, sixteen through eighteen), originalists don’t, as a rule, refuse to acknowledge their legitimacy. There’s no hypocrisy here.

          • The Fugitive Slave Clause, is, in fact, still in force, though obviously not as regards slavery (that is, its usual name is now misleading.) From Wiki:

            However, it has been noted in connection with the Fugitive Slave Clause that people can still be held to service or labor under limited circumstances; the U.S. Supreme Court stated in United States v. Kozminski, 487 U.S. 931, 943 (1988) that “not all situations in which labor is compelled by physical coercion or force of law violate the Thirteenth Amendment.”

            Omitting it was a sign of either ignorance of that fact or (horrors!) political correctness.

    • Not as written or enforced, since they simply say “Not illegal by the laws of this state”. If the states that had them attempted to interfere with federal drug law enforcement, they would amount to nullification.

    • Which is cool, because any pot growers in a pot-friendly state can still be thrown in federal prison for ten years to contemplate the supremacy clause.

      Frankly, states legislatures shouldn’t have the right to open a session with a prayer since that level of divine appeal should be reserved to the US Congress. If Congress wishes God to direct his wisdom and guidance toward directing the decisions of the state legislatures, I’m sure they could include such requests in their own prayers. No god should have t deal with potentially contradictory prayers eminating from different levels of our government.

      • No God should have to deal with state legislatures. Except a vengeful one.

      • He shouldn’t have to deal with all the snakes slithering in our state legislatures, but his intervention is often requested, granted, and welcomed in SEC football, most of whose teams enjoy state sanction. This alone indicates a much more nuanced and complex relationship between the divine and the states, and one the US Supreme Court would have little knowledge or understanding of because all the Washington teams suck.

    • They don’t claim to be, since they’re simply state laws, not claiming to override the federal law. Interesting question, though – does congress actually have the power to prohibit marijuana sales if they’re strictly intra-state or largely intra-state? Hard to see how.

      • Raich established that, yeah, the government can because of Interstate Commerce. Yes, even if no money exchanges hands (and *THAT* goes back to Wickard).

  3. You characterize “freedom from established religion” as an individual right, but I’m not sure that’s self-evident. A number of scholars (as well as at least one Supreme Court Justice, see Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 50 (2004) (Thomas, J., concurring)) would say that while the speech and free exercise clauses of the First Amendment are individual “liberties” protected against the states by the Fourteenth Amendment, the establishment clause is actually a federalism provision, thus not subject to incorporation.

    • That’s one of the reasons I think Thomas is a lunatic.

      • I think he’s wrong about this, but this isn’t actually one of the reasons I think he’s a lunatic. It seems perfectly consistent, in a theoretical way at least, to say that the establishment clause is intended to protect the states from Federal overreach rather than as an individual liberty provision.

        • It seems obvious to me that the state establishing a religion other than mine will inevitably infringe on my individual liberties. Of course, being Jewish, I only have about 1500 years of evidence to back that up.

          • What I don’t understand about religious conservatives is their inability to understand how separation between church and state helps them! I would argue that the First Amendment and separation between Church and State helped make Americans be more religious than other nations. Religion in the US is largely a matter of free will and therefore more sincere. Being forced to attend services by Religion X will just make people hostile.

    • This is a correct statement of Justice Thomas’ stance on the issue.

      But I do disagree with it. If you think, as I do, that governmental powers begin where individual rights end, and vice versa, and if you further say that the government lacks power to Establish a religion, then that means there is necessarily some sort of individual right in play.

      If you posit, as does Justice Thomas, that there is no individual right described by the Establishment Clause, but concede that the Establishment Clause strips the government of power to Establish, then there is a gray zone. Establishment exists beyond the spheres of both government power and individual rights. Neither citizen nor state can act with respect to an Establishment. I think that can’t be right because states have Established religions. Connecticut, for instance, Established Congregationalism as its official religion as late as the 1820’s — sending tax money to pay for clergymens’ salaries and annually endowing the divinity school at Yale for the purpose of subsidizing the training of new clergy. Does Connecticut still have that power should it choose to exercise it? The answer to that question seems risibly obvious to me, but to others (I suspect including Justice Thomas) the sober response is “Nothing in the Federal Constitution prohibits that.”

      Another question is, if Connecticut does try to do that again, who has standing to file a lawsuit to attempt to stop it? At least four Justices on the Court (Roberts, Scalia, Thomas, and Alito) have opined, in effect, “No one.” Because they see a gray zone, where power might not be properly exercised but there are no individual rights in play, what is at least debatably a violation of the Constitution is beyond the ability of the courts to review so if it is to stop, that must happen through the political process or not at all.

      Note, though, that Justice Thomas is skeptical about incorporation generally. He looks at Gitlow and says, that’s not right, it’s incorrect to assume that due process means anything other than minimally adequate legal procedure in the courts. There is nothing substantive about due process in Thomas’ vision. So he still lives in the universe of Barron v. Baltimore, or at least a universe very akin to it: a universe where states may violate fundamental individual liberties because of a narrow reading of the Due Process Clause and no one has the power to challenge the government’s violation of the Constitution.

      • Finding someone with standing should be easy since you just have to come up with a person that God shit on as a direct result of a prayer that eminated from the state government.

        • As a Thor worshiper I think I could fairly conclude that a governing body that begins official state functions with a prayer to a religion that feels pretty strongly that i am going to hell because I don’t Believe in their particular brand of god-bothering is going to hostile towards me and mine. in that sense god shat on me.

      • Fair point about CT’s dim view of substantive due process generally, though note that he also is the only Justice potentially open to incorporation under the privileges or immunities clause. But I do think you’re giving short shrift to the concept that a constitutional provision could be intended to protect the STATES by limiting Federal power, rather than protecting individuals by doing so. Although I haven’t done the historical research, it would be perfectly coherent to argue that the establishment clause was intended precisely to protect Connecticut’s ability to establish Congregationalism as that state’s official religion, even in the face of a national population that might wish to establish another religion nationally if left to its own devices.

        • I can see this point. There is some historic support for it; several states had already Established varying religions at the time the First Amendment was adopted. And the legal and political heritage of England was that Establishment was an incident of the government’s power, going all the way back to Henry VIII who Established himself as the head of the Church in England. The notion of Establishment as something that government can do would have been part of the Framers’ mindset. But while I understand the point, I still don’t agree with it.

          As a threshold matter, I care about the words of the First Amendment, which are law, and not what was going on inside the heads of dead politicians, which is guesswork.

          The Establishment Clause is about something that affects individuals, and is more than a mere allocation of power between the several states and the national government. For a person of one religion to have to live in a region where a different religion has been Established by the government is an imposition upon that person and not an abstraction about what level of government ought to be doing something. Your tax dollars go to support an institution you do not subscribe to and may even oppose. Your government, in which you are supposed to participate and in some circumstance in which may have no choice but to participate in, gives its endorsement to doctrines and beliefs to which you do not subscribe to and may even oppose when it Establishes a religion. By paying your taxes, you are supporting that with which you disagree and may even abhor. If that sounds like an intrusion on Free Exercise, which is pretty indisputably an individual right, that’s because it is an intrusion on Free Exercise.

          So by 1868, Establishment was off the table for any governmental entity anywhere, because of the due process clause. Granted that the Court didn’t get around to formally incorporating that right until Everson v. Board of Education, 330 U.S. 1 (1947).

          Justice Thomas might offer an internally intellectually consistent explanation of why what I’m describing here is nonsense. But I disagree with him. I say, the Establishment Clause does reflect an actual individual right. And since it’s an individual right, any individual ought to be able to assert it, to substantial effect, in a court of law. And if Justice Thomas’ vision and mine are equally intellectually valid, then mine should prevail because mine does a better job of maximizing individual liberty and maximization of liberty is a principled and beneficial way of choosing between two otherwise-equal approaches.

          • I think I’ve reached the point where playing devil’s advocate isn’t that interesting any more… I’d just say that I think Thomas probably has the better view from an originalist perspective, which to my mind should be viewed not as a fact that bears on what the law should be but as a fact that bears on whether originalism makes any sense.

          • Aww. I was really starting to enjoy myself there. So, thanks for being a good sparring partner.


  4. OK,

    James; question is still unanswered. I’ve used a similar argument to folks, not on this site, and worded differently, and it never gets answered, so let’s discuss:
    SCOTUS say “you can’t do that.” Losing side says “piss off.” How many divisions does the SCOTUS have? How shall their ruling be enforced?

    • What are you, Damon, a legal positivist?

      If the losing side is not the Federal executive, then SCOTUS has as many divisions as the President will allocate to enforce its rulings. Something which has happened in the not-so-distant past.

      If the losing side is the Federal executive, and it refuses to comply with SCOTUS’ ruling, we’re at an impasse, a Constitutional crisis. The Court has no divisions. It has no police. It has only its prestige and its logic and the cloak of legal legitimacy. An executive who defies SCOTUS runs the risk of appearing to be acting contrary to law.

      Ultimately it falls to the people and the political process to reject an executive who refuses to submit to the rule of law. And we only really have two examples of such a showdown ever happening, with a track record of one win, one loss for the Court. One President tried to ignore the Court’s orders concerning investigation of his own allegedly lawless behavior, and when it looked like he was going to follow through and defy the Court, Congress threatened impeachment and he resigned instead. Another President more or less got away with defying the Court on a popular but in retrospective particularly odious decision, in my opinion one of the lowest points in the United States’ generally good legal history and a major stain on that President’s already questionable, if influential, legacy.

      • Nah.
        Just pointing the fact that if no one pays attention to what the SCOTUS says, it doesn’t really matter what they say. All law is based upon compliance.

        But don’t forget, we have Legal council in last two administrations that now DEFINE new legalalities–killing americans in foreign lands, “enhanced interrrogations”, etc. Who needs SCOUS anymore?

  5. #1 What if the federal legislature tells the Supreme court to as you say… Piss off? The court can only interpret law and can be told what the law is, and can be told to …

    #2 Legally the state of France and the state of New Jersey are the same sovereign.

    #3 The 14th amendment was never ratified.

    • #1. Congress has told SCOTUS to piss off. Many times. Example: the Civil Rights Act of 1991.

      #2. Wow. That’s one I’ve never heard before. It sounds better than the “flag of admiralty” theory.

      #3. Yes it was.

      • The 14th was ratified under duress so isn’t legal. :/ It was a condition of ending the civil war.

        Go see whom the King gave sovereignty to after the war of 1812. FYI it wasn’t the federal government.

        For a bit of background..

        Patrick Henry 1788
        I have the highest veneration for those gentlemen; but, sir, give me leave to demand, What right had they to say, We, the people? My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask, Who authorized them to speak the language of, We, the people, instead of, We, the states? States are the characteristics and the soul of a confederation.

        • The 14th was ratified under duress so isn’t legal. :/ It was a condition of ending the civil war.

          You’re kidding, I hope. When it comes to war, the winners usually get to set the terms. The Civil War and it’s outcome should have put to rest the notion that the states can either secede from the union or nullify federal laws.

        • “Go see whom the King gave sovereignty to after the war of 1812. FYI it wasn’t the federal government.”

          Huh? I think you need to do a little more to establish that, legally, France and NJ are equal sovereigns (if that’s what this was in reference to) than some vague hand waving.

          And then you cite Patrick Henry’s losing argument against ratification of the constitution? I’m struggling to see what your driving at.

          • Not equally sovereign, the same sovereign. The real governor of New Jersey isn’t the usurper Chris Christie, it’s Louis Alphonse of Bourbon, Duke of Anjou.

          • IIRC he’s a lawyer so there’s at least that much justice in the world.

          • My mistake, I don’t know how I forgot such a commonly known fact. Though the big question that no one seems to talk about is how Christie’s status as a French usurper affects his presidential ambitions.

          • I’m not sure about politics, but it’s the real reasons Springsteen won’t talk to him.

  6. Okay, I’m a bit vague on the legal nuances, but how would the Supreme Court strike down a resolution? What would it even mean?

    For example, if the USSC struck down the Congressonal resolutions declaring their opinion that Israel has a right to act in self defense, would it mean that Israel doesn’t have a right to act in self defense or would it mean that Congress doesn’t have the opinion that Israel has the right to act in self defense, or would it mean that holding such an opinion is unconstitutional?

    • The Supreme Court doesn’t just read the morning newspaper looking for cases.
      IIRC, it’s the direct court of appeals for the D.C. district, and the other cases it takes on a certorari.
      The Supreme Court controls other courts, and that’s its power. Well, that and being able to hold their water a long time while they listen to arguments. But usually nobody ever counts that last one.

      But you have to have standing to bring a suit. You have to have a cause of action. You have to have at least one defendant, serve them with process, conduct discovery, etc.
      Supreme Court gets to work around all that. That’s part of the legwork that the lower courts do for them.

      • But my point was that the North Carolina bill is just a resolution, like the tons they pass honoring anniversaries, a variety of native sons, and celebrating the recovery of their copy of the Bill of Rights (it had pneumonia), etc. If the church bill passed, it will establish their opinion on a legal matter. How can you sue somebody for having an opinion?

        • “We ain’t sayin’ we’re passin’ a law you have to be Christian in this county. We’re just lettin’ ya’all know that’s what we’d be doing if the thought we could get away with it. You know, all official like. Now you go on and enjoy your Passover, hear?”

          • Very much like “How dare you put up a picture of Hugo Chavez and ignore Easter Sunday. (What? Who’s Cesar Chavez? Whatever, he sounds like a commie too.) We’re sick and tired of you atheists insulting religion, and we Christians demand an apology! Next year, you put up something godly, like a bunny rabbit with a basket of eggs. (What? Are you sure? OK.) Yeah, and next you apologize to the Jews because they have something or other going on too.”

        • Exactly, and since they’re only saying that they could pass a law if they really felt like it, there’s no way to find anyone with standing.

          • In fact, they’re not going to establish a church, for the obvious reason that if they chose, say, the Lutherans, they’d piss off everyone else. (Not to mention that the Lutherans would probably want no part of it either.) What they may do is pass another resolution saying “North Carolina’s official religion is Christianity”, and use that to justify something genuinely illegal, like requiring a sectarian Christian prayer at each session of the state legislature. At which point, as part of declaring that unconstitutional, the resolutions used to justify it get struck down as well.

          • Mike is probably right that a formal Establishment would look so foreign and awful to a contemporary audience that the rascals would get thrown out.

            But the point George makes reveals something too. They could pass such a law if they wanted to, is what they’re saying, and if that’s correct, then there’s a bunch of other kinds of laws they could pass, and might actually attempt. Like interposition, which could be deployed against all sorts of things.

            Chief Justice Taney was loquacious about it but the point is still valid: if the federal government is prevented from governing by a state, then the states are supreme and the federal government is subordinate and we are, in effect, thrown back to the Articles of Confederation. And we know for a fact that didn’t work out, that the Constitution was drafted to create a stronger central government than what the Articles provided for.

  7. Burt whats your take on the federalist papers No. 39? Complaining to Madison sends me out on a different limb than covered here.

    Excellent post, even though it confuses the hell out of me. Was Taneys perception of chaos self inflicted?

    • Fed. 39? Doesn’t seem applicable here. Madison tries to define what a “republican” form of government is and explains how the proposed Constitution gets you all the legitimacy of democracy without the disadvantages. I’m not sure I buy that part of it, to be honest with you, but it does provide a helpful lens with which to view the Guaranty Clause. I do agree with him that the Constitution created something new, by filtering out elements of other representative governments throughout history. But I’m not so sure that what was devised was quite as ideal as Publius paints it, given all of the crass compromising that went on in Philadelphia to even come up with it in the first place.

      Taney was not making that all-will-fall-to-chaos stuff up out of whole cloth. He was specifically recalling the years of the Articles of Confederation, when even gathering a quorum for Congress to meet was harder than hen’s teeth, the nation was left basically unarmed for inability to raise money to pay for a navy or an army, and states were literally sending troops into one another’s territories. Pennsylvania and Maryland came very close to literally declaring war on one another over a border dispute (which was one reason the eventual surveying of the Mason-Dixon line was so important).

      • I guess the problem I am trying to resolve is did Madisons original design intent view states as sovereign body and it fell apart at the convention as part of a hybrid compromise or did it become dissolved away over the years.

        Was there supposed to be a “firewall” between national and state law to prevent conflict originally, or was preeminence established at ratification? The Bill of rights being somewhat additional seperate instrument appears to be placed dually on both sides of that firewall.

        I understand that judgements bend the original design intent, but it is unclear to me where we started.

  8. I do think interposition can be justified in the some extreme (and I hope unlikely) situations.

    Let’s say the federal government tried to deny a fundamental right, not the “right” to have one’s state establish a religion, but, say, something basic, like reinstating slavery (contra amdt 15) and the courts went along with it like they did in Korematsu (although that was an executive order, not a duly-passed law, and the people in charge of the state whose citizens was most affected wanted the executive order). A state would then have, I believe, be in the right to declare that it will protect its citizens,or “interpose” itself between its citizens and the federal government.

    I do think that the violation would have to be a clear violation of a fundamental right, and I realize there are big problems about the rule of law here inasmuch as the same argument I endorse in the above circumstance might be invoked to justify a ridiculous measure like H494. Where it gets thorny is in the fundamenatlness and clearness of the violation. But I can imagine scenarios where I might endorse the interposition.

    • I’ll play the devil’s advocate now (because I don’t think interposition is ever appropriate, even in as awful a circumstance as Korematsu).

      Isn’t worshipping in the manner that your conscience dictates — part of Free Exercise — a fundamental right? Telling someone they can’t pray, and if they do pray, how to pray, seems to be a clear violation of a fundamental right. Given that Marsh v. Chambers indicates that prayer to open a legislative session is permissible, and we can’t tell anyone how to pray, the chaplain or whoever is designated to lead a prayer gets to pray as they wish.

      Now, along comes the Big Bad Fourth Circuit, telling people that in a time and place the Supreme Court has specifically said prayer is permissible, that they the Fourth Circuit get to dictate what can or cannot be said within that prayer by whatever individual it is who happens to be praying. So now you’ve got the Federal government denying a fundamental right.

      Is interposition appropriate in this case? And if so, why isn’t H494 such a justifiable interposition?

      • Well, as I said, the same reasoning I used could, unfortunately, be used to justify things like H494.

        But to answer your questions:

        1. No.

        2. The fundamental right is indeed the right to “worship in the manner that your conscience dictates,” but there’s an important qualification embedded in the 1st amendment. Not only may Congress (and the states, via the 14th) not impede the free exercise of religion. But neither may Congress (and the states, via the 14th) pass any law respecting the establishment of a religion. The fact that they were included in the same amendment suggests that they are of a piece–either in the sense of “congress cannot impede free exercise is limited by congress not being able to establish a religion” or in the sense of “in order to ensure the free exercise of religion, congress ought not to be able to establish a religion.” In my view, H494, as I understood it when I wrote my first comment, effects something that can be (and in my opinion ought to be) called an “establishment.”

        Whatever merit my answer to No. 2 has, I imagine it does not fully answer your objection, which is why I think interposition can be dangerous.

        Now here’s a 3rd question you didn’t ask but I’ll ask: “Did you (meaning me….Pierre) even read my post?”

        Now that I (Pierre) have actually read the linked-to resolution and reread more carefully your post, including the time you spend justifying incorporation, I realize that H494 is more than just an establishment effort. It is also a repudiation of incorporation. I don’t think that changes my mind about whether interposition can ever be justifiable, but I should’ve paid more attention to it.

        One thing I will suggest is that things can be so bad that states can act rightly in interposing themselves even when it is unconstitutional to do so. I believe Wisconsin was morally in the right when it tried to nullify the Fugitive Slave Act, even though it violated the constitution by doing so. (I can think of at least one countervailing argument, and that is the “secession is the essence of anarchy” argument: if Wisconsin can act unilaterally to do right, then what’s to stop another state from acting unilaterally to do wrong?)

        • I think your point #2 is telling — the government, at any level, ought not to vindicate one right by suppressing another. We’re supposed to have all our rights.

          … And yeah, it’s sometimes helpful to actually check those links. At 3,000 words, I decided that the post was long enough without excerpting the bill itself.

          • Fair enough. I’m personally not sure where to draw the line, because “fundamental” rights can and often do conflict.

  9. I tend to think of Ex parte Young when the Supremacy Clause comes up, though it’s not in direct relation to it.

    I haven’t read the whole thing yet; but from what I understand, I think it’s the Landers case from Colo. where the district court had granted summary judgment on the Rooker-Feldman doctrine. The S. Ct. remanded, saying it was not Rooker-Feldman but res judicata.
    But the upshot is that the SCOTUS is whittling away at Rooker-Feldman, finding a statutory basis for it now.

  10. Thanks for this discussion. Was pondering this question this morning, and had to re-inform myself on the matter of just how exactly the 1st Amendment, which specifically mentions Congress, was construed – as it is construed popularly and in the news reports on this item – to prevent States, which, whatever else they may be, are not Congress, from Establishment, or from curtailment of the other three famous four freedoms.

    That some states at the time of ratification and for decades after had established religions also seems strong evidence that no such constraint was originally intended or understood. So we’re left strictly with the 14th Amendment, and in effect the suggestion that the freedoms mentioned in the 1st Amendment are central examples of what the the Due Process clause means by “life, liberty, or property.” What else supports this implicit rationale?

    Personally, I do not find the rationale in the OP and in the subsequent comment on “freedom from an established religion” finally persuasive. I understand the idea that someone not a member of whatever established faith would perceive a disadvantage, be asked to support with taxes something she does not believe in, and so forth, but that is, of course, the normal state of affairs in regard to a very wide range of things that government may do that large numbers of citizens believe it shouldn’t. Now, if I were a North Carolinian I would not support this effort, but I can understand why a somewhat reasonable and literate individual who had not had the benefit of this post or a very good education in these matters would hear on the news that the 1st Amendment was said to prevent this maneuver, then would look at the text, and wonder what could possibly be meant.

    That person could say, “So, fine, the 1st Amendment counts here, too. Congress can’t pass a law with respect to establishment of religion here either, just like it can’t anywhere else. Doesn’t say anything about the state legislature, or the City Council for that matter. Maybe it ruins some person’s day to learn that for now on we’re a [whatever religion] state, but everybody makes compromises. It’s important to some people that we have health care for poor people. It’s important to some people that we have big army. Other people think those things, part of a very long list, in one way or another impinge on their life, liberty, and property, and also happen to be disgusting. We are of the opinion that our immortal souls are much more important that either of those first two things or anything else you can name, and the same type of statutory process ‘due’ enough to pass Obamacare and fund the War in Iraq or to declare so-and-so’s home a state treasure even though I think he was a phony and to set up roadside rest stops with tacky illustrations of the state bird is due enough for North Carolina to make it easier for its citizens to know Jesus in the best way. You can still practice some other religion, or worship Science or HBO or whatever it is you care about in our state, or maybe even persuade a majority of legislators to dis-establish our religion and establish nothing or your preferred religion, but, after we’re through with this one, if you want to live in our state, you’ll have to pay for the parks you don’t visit, roads you don’t drive on, cops you don’t like, and a whole bunch of other stuff in addition to our Glorious Church.”

      • Thanks. BTW – did you update the League on your physical condition? Hope you’re doing a lot better or if not that the painkillers are trippy.

        • I haven’t, thanks for asking. Ankle pain is gone (though surgery still a string possibility), hand is (mostly) healed, weight is down 8 lbs so far, and after taking very low intervention pills for two weeks i got my BP taken this morning and it was a satisfyingly dull 121 over 80. So I am definitely feeling more upbeat about pretty much everything.

          And again, thanks for asking.

    • The argument that your hypothetical literate and good-faith but lacking-in-law-school voter says is not a ridiculous one at all. “Congress” means “Congress,” after all, and not “North Carolina.”

      But consider this. “Congress” also doesn’t mean “the President.” If the President declares that for the duration of his term in office, Lutheran Christianity will be the Established religion of the United States, and yeah sure you can be a Baptist or a Jew or even an atheist but the United States is officially a Lutheran nation, would that be cool? Is that a power the President has? After all the power to Establish a religion back in Merry Olde England was vested in the King, not in Parliament, and the nation followed the King’s religious preferences back and forth throughout the Tudor and Stuart dynasties.

      And Establishment may mean more than “This is a Christian nation” as an empty proclamation. Classic, English-style Establishment has vestiges in law today, in formal (if unenforceable) prohibitions on who can hold certain kinds of public office still on the books in Arkansas, Maryland, Mississippi, North Carolina, Pennsylvania, South Carolina, Tennessee, and Texas. The ban on religious tests to hold public office only applies to Federal offices, too, so if we take a literal approach and deny incorporation, there’s nothing to stop North Carolina from requiring that every holder of public office within the state be Christian. Or more specific, Baptist. Or more specific than that, Southern Baptist (Intermediate Concordat Revival).

      Are we comfortable with a Constitution that allows this?

      • Comfort isn’t a quality necessary.

        The first 9 amendments speak to the powers of congress. The 10th leaves the rest to the states.

        The 14th illustrates the fact that everyone must be treated the same in all states. So everyone must be subject to the “state religion” if there is one.

        • 10th mentions rights of the people.

          Why do states righters always seem to care more about states rights than human rights in thier rhetoric?

          • If it’s an issue for state’s rights, even the losers in the argument (assuming it’s not something absolutely toxic) get a decent piece of the pie.

            If it’s an issue for “the people”, there’s no pie to divvy.

          • States’ rights allows the majority in a state to oppress minorities; human rights do not. Why do you think Southern states opposed the 13th-15th?

  11. CB&Q Railroad addressed takings, finding that when a state condemns land, basic notions of due process in the Fourteenth Amendment require that it pay fair market value despite the lack of any explicit state law requiring it do so; Gitlow addressed publication of an anarchist manifesto that ran afoul of state antisyndicalism law.

    It’s worth noting that the First Amendment explicitly limits the power of Congress, while the Fifth Amendment asserts individual rights. While I think contemporary records from the debate over the ratification (with which I’m not familiar) would be the best guide to the interpretation of the Fourteenth Amendment, the idea that it does not apply to the First Amendment is a perfectly reasonable interpretation, though certainly not the only one.

    I’m as big a fan of the First Amendment as you’ll find (I even think it should apply to shareholders of corporations!) and I like the results of incorporation, but I’m not at all sure that it’s legally correct.

    All that said, of the countless examples of Federal overreach that would be legitimate and richly deserving objects of nullification, the Establishment Clause is what the government of North Carolina chooses to go to the mat for? Morons.

    • (I even think it should apply to shareholders of corporations!)

      That would make shareholder meetings pretty messy (“Hey, CEO man, you work for me, so shut the hell up until I’m finished!”) but overall I agree it would be a good thing,

    • The comments issue is a magic trick called “the 301 direct” which I do on posts I wish to see appear on both the front page and my sub-blog simultaneously.

      • ITYM “301 redirect.” 301 is an HTTP status code that means “The thing you asked for at this URL has been moved permanently to this other URL”.

        • Your super powers exceed my own, good Mr. Schilling.

  12. Resentment of the large federal land holdings in the West has a 30-40 year cycle, and is on the upswing again. Seven of the 11 contiguous western states have introduced legislation in the last couple of years that either asserts control over the federal lands, or demands that the federal government transfer ownership to the states, or funds studies of the legal arguments for gaining control. Utah’s became law; Arizona’s died when the governor vetoed it; Colorado’s died in the legislature; and I’m not sure of the final status of the others. Fundamentally, all of these are about nullification or repeal of the Federal Land Policy and Management Act of 1976, which made perpetual federal ownership of those lands official policy.

  13. Burt, beyond the scope of prayer in schools and before government functions, doesn’t this resolution actually create a slippery slope where the State of North Carolina can essentially interpret both the U.S. and State Constitutions concerning social issues according to Biblical values? And if so, then wouldn’t that mean that they could pass laws that criminalize homosexuality and re-enact ‘sodomy’ laws with harsh penalties? Secondly, What are your thoughts on the clear intentions of Thomas Jefferson (clear to me at least) when he said these about the Separation of Church and State:
    “Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between church and State.”
    -Thomas Jefferson, letter to Danbury Baptist Association, CT., Jan. 1, 1802
    And this:
    “Christianity neither is, nor ever was a part of the common law.
    -Thomas Jefferson, letter to Dr. Thomas Cooper, February 10, 1814”

  14. Likko @

    You ask, “Are we comfortable with a Constitution that allows this?” I think you mean “Are or would we be comfortable with a mode of interpretation of the Constitution that leads to this conclusion allowing establishment of religion?” Or do you mean, or also mean, “Are we actually comfortable with certain aspects of the Constitution as written that force us to resort to legal constructions whose rationality may seem other than obvious?”

    I’m not sure how to take this matter further without delving into the mysteries of authority, obedience, and belief, the limits of language, the situation of the law under popular sovereignty, and the paradoxes of our established religion whose first tenet is that it is not an established religion.

    We can creep up to the edge of such a potentially very distracting examination by noting that, if we can imagine that an internally quite logically consistent “literal approach” does already deny Incorporation, then in this way “the Constitution” already does or may (or can reasonably be construed to) “allow” local “Establishment.” Therefore, what the NC Establishers are really preparing to defy or nullify isn’t, from their point of view, “the Constitution,” but two sets of interpretations: a secondary set of interpretations regarding Incorporation via the 14th Amendment as we have discussed, and the set of primary interpretations that make doctrines like Incorporation possible in the first place, regarding Supreme Court jurisprudence within the constituted order, specifically the ability of the Supreme Court to choose one interpretation over another, and, ahem, establish a manner of speaking that implies a mode of compulsory belief.

    So maybe the real question is whether we would be comfortable under some other system, or with the costs and risks of attempting a transition to it. As of now mostly not, it seems, but one aspect of the system as it is that the impossibility of the full and complete, uniform elaboration of its self-contradictory tenets is the only full and complete, uniform elaboration of its self-contradictory tenets. IRL, that means that there will always be someone proposing something whose implications are the complete overthrow of a system that exists only to the extent that we believe it exists independently of our belief in that existence independent of our beliefs. And so on.

    • What I mean is that the system is malleable. We don’t have to have the laws and the rules that we do. Whether those rules are the Fourth Circuit’s ruling about prayer at county commission meetings or the doctrine of nullification or the President having the unilateral power to Establish religion. It may be hard to change certain rules, and easy to change other ones. But there is no rule that is not subject to change.

      A rule that would re-introduce nullification into the existing Constitutional scheme is a bad idea, IMO. A rule that would allow for any actor at any level of government to Establish a religion is a bad idea, IMO.

      • Burt Likko @

        Well, thanks for indulging me, as I see now I got a little carried away with paradoxes of civic religion on an abstract level. I don’t disagree with you on the practical-political question, but I also don’t presume that my agreement or disagreement matters to anyone practically-politically. I’m more interested in the theoretical questions.

        So, on the latter score, we may be able to distinguish between a declaration of “Establishment” and an actual or effective establishment.

        The 1st Amendment even read as applying to Congress only, in combination with the No Religious Test Clause, would seem to make actual establishment virtually impossible at least for now, since a declared-established religion with no supporting legal or administrative structure would be an empty signifier. President Obama could declare the Navajo Way the official established religion of the United States, and the main effect would be on his political future, possibly involving the 25th Amendment, not on the actual status in law and society of the Navajo Way.

        On the other hand, we could imagine a mass conversion of the American population to the Navajo Way, so that a Navajo Way president could easily fill all appointive offices with NWers, and pursue an agenda along with a compliantly NW Congress and NW Supreme Court that ensconced NW precepts as well as faithful NWers at every level of the federal government. Eventually, they might, by constitutionally valid process, amend the 1st and 6th Amendments and by some logic of Incorporation, fully elaborate NWism at state and local levels. Or they might not bother, since by NW philosophy it might not make any difference whether the state attached whatever signifiers to an effective, but undeclared, NW establishment.

        In short, until there was a will to make a new religious establishment actual and effective, any declaration would just be words, but, if and when there is a will, it will find a way. We can still abide presidents making references to “God,” and possibly, at least from conservative presidents, to “Judeo-Christian values,” but under conventional understandings of religion -as essentially pre-modern cultish or sectarian, dogmatic religious organization – that’s as far as we go.

        The difficulty comes with the recognition that modern secularism or pluralism or liberal democratic ideology, articulated in relation to pre-modern religion, is a successor or child of pre-modern theocratic religion, necessarily with many of religion’s or theocracy’s essential characteristics. In this sense the will has found its way, but the way involves a what can be seen as a fundamental self-deceit – which may not be a bad thing, or, if it is a bad thing, may not be the worst thing or an avoidable thing.

        The NC people are, I suspect, attracted as much by the principle of nullification as they are by the idea of establishment. They may see themselves both to be affirming their religious freedom as well as restoring rationality on behalf of an originally Americanist libertarianism. Their “free exercise” extends, in their view, to the creation of a sanctified community. They themselves may generally also work from a conventional understanding of what “religion” really is. Some among them may, however, also view “humanism” or “secularism” or “secular liberalism” as religion under another public name. Especially since Rousseau, a school of political philosophers has recognized this ideologoy as a “civic religion.”

        The problem for the NCers is that this civic religion that does not know or acknowledge itself to be religious, or to be religious in the way that all of the lesser cultish religions are merely “religious” (rather than true and truly desirable for governance of a mass nation-state), would seem to amount to the actual established religion of the United States of America, not to mention the world America made. It is even “declared-established,” just not as a “religion.”

        The would-be North Carolina establishers of a modified pre-modern Christian cult cannot rise without the True Civic Religion of American Constitutionalism under Holy Democratic Popular Sovereignty falling that same little bit. But the True Civic Religion is powerful and pervasive. It would have a very long way to still to fall, even if the reactionary cult happens to seize control of a city council somewhere for long enough to have a few somewhat sectarian prayers said before sessions, or to put the emblems of the cult on the same level as a team mascot.

  15. I guess this is as good a place as any to ask a question that I’ve had for a while about the First Amendment.

    Why is the Establishment Clause interpreted by lawyers and courts as meaning “The government (at any level) cannot acknowledge religion in any way”? The Establishment Clause states that “Congress shall make no law respecting an establishment of religion.” To me that seems to state pretty clearly that the US government can’t set up a specific denomination or religion as an official state church, along the lines of the Church of England. It doesn’t state that a legislature can’t open its sessions with prayer, like North Carolina is doing, or that the national government can’t spend any money whatsoever on something that benefits a religion, or that no religious symbols or depictions can occur in public places. Yet that’s what laymen and lawyers alike seem to almost universally take it as meaning these days.

    Why? How did interpretation get from the text of “there can’t be an official state church” to the idea of “a local government composed of Christians can’t pray at its meetings”?

    • I don’t think the Establishment Clause means what I think you think I think it means.

      The government can acknowledge religion. There can be prayers at meetings of government officials.

      What the Establishment Clause forbids (in my view) is ENDORSING religion.

      • 1.) Then what’s wrong with what the county in North Carolina is doing? What’s wrong with a community-organized religious display being present in a public part or on another government property? IE: why do courts keep ruling these things are not allowed?

        2.) What’s the distinction between “acknowledging” and “endorsing”?

        3.) How do you get from “the government can’t pass laws creating an established state religion” to “the government can’t endorse religion”?

        This is something that I’ve never quite grasped in reading debates on church and state in the US, and I figure a lawyer who regularly writes about constitutional issues is the best person to ask.

        • Taking your questions out of order will help me answer them better. First of all, what’s “endorsement” and how do we get there from the exact words of the Establishment Clause?

          Whether the key word is “endorsement,” “favoritism,” or “promotion,” the essential principle remains the same. The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from “making adherence to a religion relevant in any way to a person’s standing in the political community.” County of Allegheny v. ACLU, 492 U.S. 573, 593-594 (1989), citing Lynch v. Donnelly, 465 U.S. at 687 (O’CONNOR, J., concurring).

          I think it’s not yet clear that what Forsyth County, North Carolina is doing violates the Establishment Clause. I think it does, but it appears that, for instance, the Ninth Circuit disagrees with me, having given its blessing to a functionally identical policy in a city very near where I live. I believe it will take a ruling from SCOTUS to reconcile these conflicting opinions. I think it’s an endorsement because when those people get up and pray in front of the rest of the community, they do so in their capacity as public officials and since they make decisions for and are the leadership of a city or a county, they personify the city or county and thus it is the city or the county itself that is praying.

          Public prayer inherently is taking a stance on a religious issue: there is a god, and this is how you pray to that god.

          Your third question is a bit ambiguous — do you mean the government can’t endorse a religion, or the government can’t endorse religion at all? I think ti can do neither, and so does the Supreme Court:

          Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of non-religion, and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion. Epperson v. Arkansas, 393 U.S. 97, 103-14 (1968)

          You get to decide for yourself. If “decide” is the right word. The government has to be neutral.

          Now, what’s a permissible “acknowledgement” in my view? Declaring holidays on days when the government knows lots and lots of people are going to want the day off for religious reasons. In a nation where still upwards of 75% of the people are Christians, that means major Christian holidays, which fortunately enough tend to only fall during the week for Christmas since Easter is by definition always on a Sunday. (Here it is, anyway; other nations have it on Mondays.) In localities where the population is overwhelmingly Jewish or Muslim, I don’t see a problem with using Jewish or Muslim holidays in the same way. It’s a fair acknowledgement to have a moment of silence to allow people to pray if they wish; I personally have a problem when prayer is explicitly set forward on an agenda but making time for prayer when it’s clear that prayer is optional is something qualitatively different to me. A political leader sending greetings to religious communities in commemoration of their holidays and festivities is A-OK. Reaching out to leaders of churches or analogous religious institutions within a community to seek volunteers or as places to distribute information and benefits is a good thing to do. Giving accreditation to religious schools and recognizing their diplomas on equal footing with secular schools is perfectly fine. Allowing religious groups access to public buildings and facilities on the same terms as they are offered to anyone else is fine. If churches or other kinds of buildings are of historical significance, they can and should be preserved with the assistance of the government — you can’t fully preserve the history of the American Revolution in Boston, for instance, without having the Old North Church and the Granary Graveyard; the public through the government can and should help maintain those places because they are part of our civic heritage as well as places of religious significance.

          Is that enough examples?

          • Thanks for the response. I still feel like the courts have interpreted the Establishment Clause as meaning more than it actually says, but this explains what the current legal understanding is.

    • The key to understanding Constitutional jurisprudence is recognizing that the Constitution as enforced bears only a passing resemblance to the Constitution as written. Short of an amendment, the Supreme Court has the final say on how it gets enforced. If they don’t like what’s written, they can just rewrite it.

      • And the key to understanding why this is is to understand that the Constitution simply doesn’t say enough to allow courts to enforce it only strictly as written and still answer all the questions that need answers in order to resolve all the disputes and assess the constitutionality of all the laws that come before them. Hence “construction,” which is just a fancy word for “making stuff up to fill in the blanks.”

        • Likewise “originalism” AKA “making stuff up while pretending not to”, and “activism” AKA “making up different stuff than I do.”

        • Yes, there are gaps, of course, and where there are, filling them in with case law—after first making a good-faith attempt to determine how it was generally understood at the time of ratification—is a perfectly legitimate thing to do. The only thing that can be done, really. The problem comes when courts rule in ways that run counter to the parts that are clear.

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