Wednesday, April 04, 2012

More First Amendment nonsense

"The first amendment of the United States Constitution forbids state-sanctioned religion," says Robert Asher of the Huffington Post, "yet guarantees the right to its expression."

Uh, no. Sorry.

The First Amendment does not forbid state-sanctioned religion. It prevents the U. S. Congress from establishing one. Five states who ratified the Constitution with this language in it had established churches.

Just because people keep making this claim doesn't make it true.

22 comments:

KyCobb said...

The SCOTUS has long held that the 1st Amendment applies to the states via incorporation by the due process clause of the 14th Amendment. Just because you claim otherwise doesn't make it true.

Martin Cothran said...

KyCobb,

But just because SCOTUS claims it's true makes it true?

KyCobb said...

Well yes, Martin. If you don't believe me, ask any of the state and local governments which have ended up having to pay big legal fees to the ACLU for promoting religion.

Martin Cothran said...

KyCobb,

Alright, just clarifying before we take this any further: Anything the Supreme Court says is true is true?

KyCobb said...

Martin,

If you are talking about Obamacare, regardless of the fact that I and many other lawyers, including conservative judges, think its constitutional, if five Supreme Court judges disagree, then its unconstitutional. They have the final say.

Martin Cothran said...

KyCobb,

I wasn't talking about Obamacare; I was talking about Dred Scott v. Sandford.

KyCobb said...

Martin,

Dred Scott was decided at a time when most african-americans had the same status as domestic cattle, recognized by the Constitution, so at the time it was not an unreasonable interpretation of the Constitution, as heinous as it was.

Thomas said...

Kycobb,

Suppose the Supreme Court says "nowhere does the First Amendment prohibit Congress from making a law respecting an establishment of religion." The First Amendment says "Congress shall make no law respecting an establishment of religion ...."

Does the First Amendment prohibit Congress from making a law respecting an establishment of religion?

Martin Cothran said...

KyCobb,

I'm confused. If the Supreme Court said it, then it is true. That is your stated position. The Supreme Court said that slavery was protected in the Constitution, therefore, it is true to say that slavery is protected in the Constitution.

That's the logical consequence of your position.

According to your view, the Supreme Court could never overturn a case, since it had already decreed something to be true.

Or is the Court like the Greek gods, who simply decreed their whims?

One Brow said...

The Supreme Court said that slavery was protected in the Constitution, therefore, it is true to say that slavery is protected in the Constitution.

Do we really need to have a lesson on ther difference between "was" and "is"?

According to your view, the Supreme Court could never overturn a case, since it had already decreed something to be true.

It should be clear that KyCobb be true according to the law. Why would you be injecting some notion other notion into this? The Constitution is a legal document, not a philosophical document; what is true legally is what's relevant when discussing what is true about it.

KyCobb said...

Thomas,

"Does the First Amendment prohibit Congress from making a law respecting an establishment of religion?"

If five members of the Supreme Court say it doesn't, then as a legal matter, it doesn't.

KyCobb said...

Martin,

"The Supreme Court said that slavery was protected in the Constitution, therefore, it is true to say that slavery is protected in the Constitution.

That's the logical consequence of your position.

According to your view, the Supreme Court could never overturn a case, since it had already decreed something to be true."

Slavery was arguably protected in the Constitution as it existed in 1857. The 13th Amendment changed the Constitution. Your position is like saying that because its true that I'm alive now, I'm immortal. Things change.

"Or is the Court like the Greek gods, who simply decreed their whims?"

I wouldn't say that the Justices are whimsical. However its obvious that different Justices have differing judicial views, thus a change in the composition of the Court can result in changes in constitutional law.

Thomas said...

Kycobb,

All you're saying (now) is that the Supreme Court's interpretations of the Constitution will have the status as precedent. Well, duh, no-one's arguing with that.

The question is whether the Supreme Court can misconstrue the Constitution. If the Supreme Court gets it dead wrong, then it's not clear they shouldn't correct themselves.

KyCobb said...

Thomas,

"The question is whether the Supreme Court can misconstrue the Constitution. If the Supreme Court gets it dead wrong, then it's not clear they shouldn't correct themselves."

They correct themselves frequently. Martin seems to have this belief that there is one absolutely correct interpretation of the Constitution, and any other interpretation is some degree of wrong. But there is no reason to believe that all the people who participated in drafting the original Constitution, and its subsequent amendments, were in absolute agreement as to the meaning of the words they voted to accept.

Thomas said...

Where does he say there is only "one" "absolutely correct" reading of the Constitution? It looks to me like the original post just said that one particular reading of a constitutional provision was incorrect and one other particular reading is correct.

Your claim seems to be that the Constitution says whatever the Supreme Court says it says. But no justice on the Supreme Court would argue that. They all argue that their interpretation is correct, which means they all believe there is a correct interpretation.

KyCobb said...

Thomas,

"Where does he say there is only "one" "absolutely correct" reading of the Constitution?"

I'm interpreting his comments, for example, his saying that if the Court's determination in Dred Scott was "true" in 1857, its still true today.

"They all argue that their interpretation is correct, which means they all believe there is a correct interpretation."

That would be an interesting level of hubris, if each Justice actually believed that he or she is in sole possession of the knowledge of the one true interpretation of the Constitution. I suspect most of them are aware that they are not in fact prophets in possession of divinely revealed "truth", but rather judges applying as best they can a sometimes vague document to often novel situations that the drafters could not have conceived of.

Thomas said...

KyCobb,

I'm not sure you are saying anything coherent. To the extent you're saying that the Supreme Court's interpretations of the Constitution have precendential status and that some provisions of the Constitution seem vague, you're not saying anything new or interesting. I cannot think of a single person that would disagree with those statements.

It's another matter entirely to say that the Constitution says whatever the Supreme Court says that it says. That's manifestly false, and if that is your point, you're simply being logically incoherent.

Martin Cothran said...

Thomas,

If KyCobb can interpret the First Amendment to mean whatever he wants it to mean, then surely he can interpret my post to mean whatever he wants it to mean.

But on the other hand, he obviously doesn't believe he is in sole possession of the knowledge of the one true interpretation of my remarks, which makes you wonder why he's commenting on this thread at all.

KyCobb said...

Martin,

If I misinterpreted your comment on Dred Scott, please correct me. It seemed to me you were saying that if Dred Scott was true in 1857its still true today.

KyCobb said...

Thomas,

"It's another matter entirely to say that the Constitution says whatever the Supreme Court says that it says. That's manifestly false, and if that is your point, you're simply being logically incoherent."

Whether you like it or not, when the SCOTUS renders an opinion on what the Constitution means, that opinion has the force and effect of law, and you will suffer real consequences if you flaut it because it is "false." So I don't know what you mean by claiming that its manifestly false that the Constitution means what the Court says it means, since in the real world everyone is required to act as though its manifestly true.

Thomas said...

KyCobb,

Your argument is a non-sequitor. You think that if in the real world people are expected to behave as if something is true, then it is true. If that were the case, it would be true to say that God exists if there were a legal power that required people to behave as if that were so.

KyCobb said...

Thomas,

"If that were the case, it would be true to say that God exists if there were a legal power that required people to behave as if that were so."

Good point for discussion. Court's can't change objective reality; if a Court decreed the speed of light was 20 mph, that would not make it so. What I have been discussing is the interpretation of Constitutional law. While the Court cannot make God exist, it can either allow or prohibit a state from establishing a religion, based on how the words of the Constitution are interpreted. The meaning of words is not objective reality like the speed of light is; in fact the meaning of words is constantly evolving, as is obvious from reading Shakespeare.