Thursday, June 27, 2002

Unfinished Business. Pat Leahy's Judiciary committee has finally sent the nomination of Arkansas lawyer Lavenski Smith to the full Senate. Let's get off your butt, Pat and start looking at some of these other nominees.

Here's my prior comment about Lavenski Smith, the man from Hope.
Boris the Spider. John Entwistle died today in Las Vegas. Good bye, Ox.
Victory. I imagine everyone stoping here has heard the good news that the majority of the Supreme Court recognized school choice in constitutional. Here is a good link to the various opinions in both HTML and .pdf. I note that in .pdf format all the opinions run nearly 100 pages. In other cases the Court approved random drug tests for many public high school students (Breyer and Kennedy in the majority, O'Connor dissenting), declared a gag rule on judicial candidates to be unconstitutional, and determined that chaining a prisoner to a post for seven hours in the sun is cruel and unusual punishment.

I'll read these opinions and offer comments later, if I have anything to say.

Wednesday, June 26, 2002

RIP I just received a note saying that the former Dean of my law school (and my Labor Law Professor) passed away recently. He was a grand man. He loved God and his family. May he rest in peace.
Dishonest Judges Don't miss this note in Instapundit regarding historical falsification by David Souter in his opinion in Atwater v. Lago Vista. The referenced article is here in .pdf format.

This is not unusual. I recall prior Supreme Court opinions that severely twisted and manipulated history to suit the Justices preferences. Nevertheless, it's nice to see someone taking on the Justices.
On the cusp. It's the evening before the Zelman decision (whether providing vouchers to parents, which may be used for religious schools) is announced (actually, it could be held over for a decision next term) -- this case, more than any other could be the main case of the October 2001 Supreme Court term. By holding on to it until the last day, the Court clearly shows that this has been the subject of intense internal debate -- far from the unanimous opinion that I once predicted.

What I am very concerned about is that the Court will confuse a policy decision from a constitutional decision. In discussions with people regarding this case in the past few weeks they have all indicated in some fashionthat they hope the Court strikes down the case because it will kill the public schools. In the Zorach case I quoted below, Justice Douglas also wrote: "This program may be unwise and improvident from an educational or a community viewpoint. That appeal is made to us on a theory, previously advanced, that each case must be decided on the basis of 'our own prepossessions.' . . . Our individual preferences, however, are not the constitutional standard. The constitutional standard is the separation of Church and State." He concluded by saying "we cannot expand [our jurisprudence to strike down] the present released time program unless separation of Church and State means that public institutions can make no adjustments of their schedules to accommodate the religious needs of the people. We cannot read into the Bill of Rights such a philosophy of hostility to religion."

Yes, there may be valid reasons for voting against a voucher system like the one used in Cleveland, however, the Court are not council members or legislators -- the only issue before them is whether the use of government vouchers by parents to provide and education for their children is an unconstitutional establishment of religion. I am strongly convinced it is not. A decision to the countrary would be as illegitimate as the 9th Circuit striking down the amendments to the pledge of allegiance.
Pledging Allegiance. Two judges on the 9th Circuit Court, one, an elderly Nixon appointee, one, a Carter appointee (and the bete noir of the conservatives) today determined that the 1954 amendment, which held the words "under God" to the national Pledge of Allegiance to be an unconstitutional Establishment of Religion.

There were four parts to this decision, the first three were not surprising or controversial. In part A, the Court rejected Newdow's (the litigant) request to compel the President and Congress to amend the Pledge of Allegiance to strike the words "under God" from the Pledge. In part B, the Court said that it would not address Newdow's request to strike down the California Statute mandating in the Pledge in the schools, because the state of California was not a party. In part C, the court said that Newdow, as a parent of a child in a particular school district had standing to challenge that district's policy. It further said that he did not have standing to challege a policy of a different school district where his child was not a current student.

In Part D of the 9th Circuit determined that "in the context of the Pledge, the statement that the United States is a nation 'under God' is an endorsement of religion. It is a profession of a religious belief, namely, a belief in monotheism." After a review of the Supreme Court's recent Establishment clause jurisprudence, the two judges on the 9th circuit held that "the 1954 Act adding the words 'under God' to the Pledge . . . violate[s] the Establishment Clause."

To refresh everyone's recollection, the "Congress shall make no law respecting an establishment of religion." A review of the Supreme Court's jurisprudence of the past 20 years or so shows that it has built an edifice of case law that is so far askew of the plumb line of the establishment clause that it was bound to collapse, and this could bring it down. A review of the 9th Circuit decision shows that it has been built on those great errors. Specifically, in Wallace v. Jaffree, 472 U.S. 38 (1985), the Court struck down an Alabama statute that authorized a one-minute period of silence in public schools "for meditation or voluntary prayer." In Lee v. Weisman, 505 the Court banned a non-sectarian invocation offered at a high school graduation 505 U.S. 577 (1992). Finally, in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), the court prohibited student initiated and led prayer before an extra-curricular school event. Each of these interpretations is a clear departure from the touchstone of the constitution.

This is not an establishment of religion. It is time for the Court to strip down the crust that has built up over the past twenty years and get back to first principles. The first question that should be asked is whether the action of Congress or the state has the effect of establishing a religion. Does this create an institution like the established church in England? If not, that doesn't necessarily mean the legislature can, say, require students to recite the Pledge. That issue was effectively addressed by the Supreme Court in the Barnette 319 U.S. 624 case (overruling the earlier Gobitis decision) in which the Court stated:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." at 642.
Back in 1952, Justice William O. Douglas, writing for the Supreme Court observed:
The First Amendment, however, does not say that, in every and all respects there shall be a separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one on the other. That is the common sense of the matter. Otherwise the state and religion would be aliens to each other -- hostile, suspicious, and even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be permitted to render police or fire protection to religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution. Prayers in our legislative halls; the appeals [p*313] to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; "so help me God" in our courtroom oaths -- these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session: "God save the United States and this Honorable Court."

Zorach v. Clauson 343 U.S. 306 (1952) In that case, Justice Douglas went on to write:
We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe. Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence. The government must be neutral when it comes to competition between sects. It may not thrust any sect on any person. It may not make a religious observance compulsory. It may not coerce anyone to attend church, to observe a religious holiday, or to take religious instruction.
Justice Douglas is widely perceived as a judicial liberal -- I recall attending a lecture by Notre Dame Law Professor where he referred to him as William ZERO Douglas -- yet, his liberalism could be (and generally was) grounded in the constitution (he was very wrong in his Yoder dissent). I would like to see today's judicial liberals return to that type of constitutional fidelity.

For further research: The judge who wrote the majority opinion, also was on the committee that issued this church report.
Judicial Idiots. I was going to talk about Zelman tonight, and I probably still will, but before I do, I'm going to sit down and read the 9th Circuit opinion declaring the Pledge of Allegiance unconstitutional. I'll have some comments later.

I'm looking forward to seeing whether the 2 judges on the 9th Circuit cite Red Skelton as an authority?

Sunday, June 23, 2002

Cover Watch It's the end of the world! So naturally Time magazine takes the cover watch this week. I mean Martha Stewart for Newsweek? Martha Stewart v. the Apocalypse? No contest.

I haven't read the story yet which looks at the Tim LaHaye - Jerry Jenkins books, but I've listed to about 4.5 of these books (I'm half way through Apollon now), but I'll tell you these books are such drivel. As I indicated I've been listening to them on books on CD and I find that whenever there's a defect in a track, I can skip to the next track and not miss a thing. If you want to read a good book on the apocalypse, look for Father Elijah by Michael O'Brien. (I'll paste a link later)

It's the end of the world as we know it and I feel fine.