Sorta libertarian, sorta conservative, never poltically correct either way, dedicated to sarcasm and a refusal to grow up. That would be me.
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Saturday, July 09, 2005
Separation Consistency
At the end of its most recent term, the United States Supreme Court made decisions in two cases involving the Ten Commandments. Many think these decisions were contradictory. They were not.
In the Texas case, it was ruled that a monument containing the text of the Ten Commandments did not violate the Constitutionally mandated separation of church and state. This was a good decision. The monument was outside, in a park containing other monuments, and clearly marked as having been purchased with private funds. There was no evidence that other religious groups had been denied the right to place similar monuments.
In the Kentucky case, the local courts stepped over the line. There, the Commandments were posted inside courtrooms, in a way that gave the distinct impression that the Court itself was endorsing their content. The Supreme Court here ruled that this implied endorsement was a violation of the Separation requirement.
The Supreme Court has stated that further rulings may be required. This is also true. The facts of future cases will be different. But so far, the rulings have been consistent with both the free exercise and Establishment clauses of the First Amendment.
Government may accomodate religion and religious groups. However, it may not do so on a preferential basis, nor may it take actions that promote one faith over another, or promote faith (or lack thereof) itself. Such actions take the risk of mixing the inherently coercive power of government with the pure conscience of religion.
Perhaps even more disturbing than the occasional attempts to use said power to promote religion is the degree of rhetoric we hear when they are restrained. Why is it so important to post the Ten Commandments in a courtroom that there must be a great uproar when it is ruled unacceptable? The only reason I can think of is a general disbelief in the separation of religion and government. This is dangerous. Said separation has made America the safest place in the world to practice any faith....or none at all.
At the end of its most recent term, the United States Supreme Court made decisions in two cases involving the Ten Commandments. Many think these decisions were contradictory. They were not.
In the Texas case, it was ruled that a monument containing the text of the Ten Commandments did not violate the Constitutionally mandated separation of church and state. This was a good decision. The monument was outside, in a park containing other monuments, and clearly marked as having been purchased with private funds. There was no evidence that other religious groups had been denied the right to place similar monuments.
In the Kentucky case, the local courts stepped over the line. There, the Commandments were posted inside courtrooms, in a way that gave the distinct impression that the Court itself was endorsing their content. The Supreme Court here ruled that this implied endorsement was a violation of the Separation requirement.
The Supreme Court has stated that further rulings may be required. This is also true. The facts of future cases will be different. But so far, the rulings have been consistent with both the free exercise and Establishment clauses of the First Amendment.
Government may accomodate religion and religious groups. However, it may not do so on a preferential basis, nor may it take actions that promote one faith over another, or promote faith (or lack thereof) itself. Such actions take the risk of mixing the inherently coercive power of government with the pure conscience of religion.
Perhaps even more disturbing than the occasional attempts to use said power to promote religion is the degree of rhetoric we hear when they are restrained. Why is it so important to post the Ten Commandments in a courtroom that there must be a great uproar when it is ruled unacceptable? The only reason I can think of is a general disbelief in the separation of religion and government. This is dangerous. Said separation has made America the safest place in the world to practice any faith....or none at all.
In defense of Marbury v. Madison.
A popular theme among some conservatives these days is to decry “judicial activism”. I think some basic premises are in error.
Certainly there have been times in our history where judges abused their power. Nevertheless, judicial restraint of the powers of government is a fundamentally Constitutional, and dare I even say fundamentally conservative principle.
Consider the role of the judge. It is, fundamentally, to decide if the law has been broken. He applies the law to the determined facts in a case, and decides if a violation has occurred.
The Constitution is, of course, the fundamental and supreme law of the United States of America. All other laws must conform to its stictures and requirements. As with any other law, the question of its enforcement is paramount. An unenforced law has no meaning.
So how is the Constitution to be enforced?
Should it be the job of the legislature to do so? Clearly not. The Framers made the process of amending the Constitution a difficult task. Far more than a majority is required. The legislature is a body that works on simple majority. That is how it is selected, and that is how it makes decisions. To give it the de facto authority to revise the requirements of the Constitution is clearly contrary to the Amendment process.
How about the Executive? The same majoritarian problem applies. The President is always subject to the whims of the mob. The Amendment process requires much more than a whim.
The Judiciary is the clear choice. Not only is their normal role the interpretation of the application of law, but they are insulated from the electoral process. The decisions of the Supreme Court can be revised, but it requires a Constitutional Amendment to do so. This gives the Amendment process, one of the keys to the strength of our Constitutional form of government, some teeth.
But doesn’t this give judges, particularly the Supreme Court, unrestrained power?
No. The nature of the judicial process places the following restraints:
- They may only consider facts brought before them and issues which are directly being challenged.
- They may only restrain government from implementing passed or existing laws. They may not order new laws put in place.
- They must justify their decisions based upon laws higher than the law passed, up to and including the Constitution.
But how do we ensure honesty on their part:
Two ways. The Executive and Congress approve judges. In cases of misconduct or malfeasance, Congress can remove them.
To be meaningful, a Constitution must be enforced even.....no, especially against violation by government entities. The Turkish Constitution assigns this duty to the military. I would say that our way is at least as effective, and institutionally far superior.
A popular theme among some conservatives these days is to decry “judicial activism”. I think some basic premises are in error.
Certainly there have been times in our history where judges abused their power. Nevertheless, judicial restraint of the powers of government is a fundamentally Constitutional, and dare I even say fundamentally conservative principle.
Consider the role of the judge. It is, fundamentally, to decide if the law has been broken. He applies the law to the determined facts in a case, and decides if a violation has occurred.
The Constitution is, of course, the fundamental and supreme law of the United States of America. All other laws must conform to its stictures and requirements. As with any other law, the question of its enforcement is paramount. An unenforced law has no meaning.
So how is the Constitution to be enforced?
Should it be the job of the legislature to do so? Clearly not. The Framers made the process of amending the Constitution a difficult task. Far more than a majority is required. The legislature is a body that works on simple majority. That is how it is selected, and that is how it makes decisions. To give it the de facto authority to revise the requirements of the Constitution is clearly contrary to the Amendment process.
How about the Executive? The same majoritarian problem applies. The President is always subject to the whims of the mob. The Amendment process requires much more than a whim.
The Judiciary is the clear choice. Not only is their normal role the interpretation of the application of law, but they are insulated from the electoral process. The decisions of the Supreme Court can be revised, but it requires a Constitutional Amendment to do so. This gives the Amendment process, one of the keys to the strength of our Constitutional form of government, some teeth.
But doesn’t this give judges, particularly the Supreme Court, unrestrained power?
No. The nature of the judicial process places the following restraints:
- They may only consider facts brought before them and issues which are directly being challenged.
- They may only restrain government from implementing passed or existing laws. They may not order new laws put in place.
- They must justify their decisions based upon laws higher than the law passed, up to and including the Constitution.
But how do we ensure honesty on their part:
Two ways. The Executive and Congress approve judges. In cases of misconduct or malfeasance, Congress can remove them.
To be meaningful, a Constitution must be enforced even.....no, especially against violation by government entities. The Turkish Constitution assigns this duty to the military. I would say that our way is at least as effective, and institutionally far superior.