diet coke for breakfast

Tuesday, August 26, 2003

Posted by Tanstaafl
Zellman v. Simmons-Harris

The Supreme Court has already settled the issue of the Constitutionality of vouchers. My concern is more that people will use the "Separation of Church and State" argument in their debates, not in court.

I disagree completely with the notion that "the authority given, even if by the State Constitution, is what violates the clause..." I would contend that is impossible since the 1st Amendment says, pretty clearly, "Congress shall make no law." Congress did not set up the process for choosing Alabama's judges, Congress did not make a law saying who can decorate the rotunda, and Congress did not write the Alabama State Constitution. If Congress didn't violate the establishment of religion clause, how could anyone have? It doesn't limit anyone else. I'm willing to concede that judicial precedent has come down on Matt's side over the last 40 years. However, that is my primary complaint. The judicial activism was less this one federal judge, and more federal judges over the last half-century. By time the issue was before Scalia and Thomas, the phrase "Congress shall make no law..." was already being ignored, and I think that's a huge problem. The reason that is the VERY FIRST PHRASE in the Bill of Rights is an issue of federalism. The Federal government should be very careful in how it endorses or reacts to religion, mostly so people in different States or regions can make up their own minds. I was watching a repeat of West Wing last night. Toby and Sam were tearing into a prospective Supreme Court nominee over his rejection of the "Right to Privacy". Toby asked if he denied the existance of "Natural Laws". The judge responded that there are "Natural Laws" but that as a Judge, he had no place in enforcing them. I think the separation of powers is more important than the separation of church and state. By failing to preserve the separation of powers, we risk letting one branch of our government trample rights, without a counteracting force by another branch.

Matt -- Yeah the constructionist in me wants to agree with you on that point. For reference sake, which I mentioned earlier, the 14th amendment is what seems to be responsible for all this. It's been decided that the "due process" clause necessitates the entire bill of rights be applied all the way down to the lowliest municipality. In effect, amending the first phrase to "Nobody shall make a law....." This is of course why the 14th amendment is the most probably the most contested of the entire constitution.


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