Different River

”You can never step in the same river twice.” –Heraclitus

June 28, 2005

Is the Supreme Court Literate?

Filed under: — Different River @ 2:36 am

The Supreme Court issues two very strange rulings yesterday (Monday) on the public display of the Ten Commandments. Briefly, they ruled that it’s OK to display the Ten Commandments on public property (in this case, on the grounds of the Texas state capitol), but not OK in a state courtroom (in Kentucky). But it is OK in the Supreme Courtroom, which does in fact have such a display.

If that’s not confusing enough, wait until you read the actual decisions (McCreary County v. ACLU of Ky. and Van Orden v. Perry.)

Why do I ask if the the Supreme Court is literate? Because the five justices in the majority (and their clerks) had months to rule and write their opinions, but less than 16 hours after their decision was made public, Clayton Cramer had a documented, well-written article with complete citations showing that the facts cited by the majority for its decision were not exactly facts. In other words, the decision was based on legal and factual premises which are demonstrably false — not only that, but demonstrably false within hours by a computer programmer in Idaho, who presumably had a full workday to do all sorts of non-lawyer, non-judge, non-scholar things as well in that 16 hours — in which he also wrote three other blog-posts, including one documenting errors in a program on the History Channel, and another on ducks.

You should read the whole thing, but here’s a brief excerpt anyway:

The decision McCreary County v. American Civil Liberties Union oF Kentucky (2005) goes off the tracks immediately:

The touchstone for our analysis is the principle that the “First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.” Epperson v. Arkansas, 393 U. S. 97, 104 (1968); Everson v. Board of Ed. of Ewing, 330 U. S. 1, 15-16 (1947); Wallace v. Jaffree, supra, at 53.

They are following the precedents just fine; the problem is that the precedents are incorrect. The First Amendment was never intended by the First Congress to mandate “governmental neutrality… between religion and nonreligion.” At best, the First Congress intended to mandate that no religious establishment–that is, a particular denomination or organized body–would receive preferential treatment from the federal government.

I don’t dispute that the Fourteenth Amendment imposes the First Amendment against the states–but if you want to understand what incorporation imposes on the states, you need to first understand what the First Congress intended the First Amendment to impose on the federal government. …

[Here Clayton cites the state constitutions of Pennsylvania, North Carolina, Maryland, and Massachusetts to show that the states had religious requirements for public office back when the First Amendment was ratified. He then quotes something I read a long time ago in print, and searched in vain for months to find online -- Thanks, Clayton!]

The federal government–including the draftsman of the Bill of Rights, James Madison, and the most famous skeptic of the Framers, Thomas Jefferson–never seems to have understood the First Amendment as a restriction of the sort that the Supreme Court has now found. The Library of Congress’ exhibition on “Religion and the Founding of the American Republic” observes:

It is no exaggeration to say that on Sundays in Washington during the administrations of Thomas Jefferson (1801-1809) and of James Madison (1809-1817) the state became the church. Within a year of his inauguration, Jefferson began attending church services in the House of Representatives. Madison followed Jefferson’s example, although unlike Jefferson, who rode on horseback to church in the Capitol, Madison came in a coach and four. Worship services in the House–a practice that continued until after the Civil War–were acceptable to Jefferson because they were nondiscriminatory and voluntary. Preachers of every Protestant denomination appeared. (Catholic priests began officiating in 1826.) As early as January 1806 a female evangelist, Dorothy Ripley, delivered a camp meeting-style exhortation in the House to Jefferson, Vice President Aaron Burr, and a “crowded audience.” Throughout his administration Jefferson permitted church services in executive branch buildings. The Gospel was also preached in the Supreme Court chambers.

Jefferson’s actions may seem surprising because his attitude toward the relation between religion and government is usually thought to have been embodied in his recommendation that there exist “a wall of separation between church and state.” In that statement, Jefferson was apparently declaring his opposition, as Madison had done in introducing the Bill of Rights, to a “national” religion. In attending church services on public property, Jefferson and Madison consciously and deliberately were offering symbolic support to religion as a prop for republican government.

I know Clayton Cramer is a really smart guy, very well-read, knowledgeable, and intelligent. He seems to know more history than most history professors and more law than most lawyers. But you’d think that even with all that, you’d think the five justices who signed on to that opinion, who have been lawyers for decades and on the court for between 10 and 30 years, work full-time at law, and have several full-time clerks, and had literally months to write that decision — even if they wanted to make a decision against historical precedent, you’d think they could do better than write something that could be thoroughly debunked in a few hours by a non-lawyer with a day job.

The power of the Supreme Court obviously comes from something other credibility. I wonder how long this situation can last.

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