Dispatches from the Creation Wars

Federalist Blog on the Dover Ruling

In looking for reactions to yesterday’s ruling from legal scholars, I found this post on a Federalist Society blog by someone named P.A. Madison. The arguments, which run the gamut from the false to the downright silly, would make a great exam answer for my buddy Dan Ray to grade. I can almost see him shaking his head and getting out his red pen. He begins:

I cannot say I am surprised by the Kitzmiller v. Dover Area School District ruling handed down by U.S. District Judge John E. Jones III, but as always, surprised how such cases are so easily seen as a federal issue. The ruling as usual is void of constitutional facts to support federal review and relies on previous unsupported court myths (called precedent).

I like the way he says that the ruling doesn’t make an argument for federal review “as usual”, as though it ought to contain such arguments and judges just keep ignoring the issue. But of course, that’s nonsense. There are two very good reasons why the decision does not attempt to make a case for federal review, and these should be obvious to anyone with even a passing knowledge of the courts, much less a “former research fellow in constitutional studies”.

First, because the issue wasn’t raised in the case. The defense did not challenge the jurisdiction of the Federal court in this matter, nor did they attempt to make an argument against incorporation. The judge has to adjudicate a case based on the arguments presented to him, he can’t invent his own rationale for why the plaintiffs are wrong and decide the case based upon that.

Second, because even if he was of the opinion that the first amendment should not be incorporated against the states he is bound to apply higher court precedent. The application of the establishment clause to the states via the 14th amendment goes back to the Everson case in 1947. Since that time, the Supreme Court has consistently applied the establishment clause against state and local actions in literally dozens of cases. Does Mr. Madison really think that lower court judges, 60 years later, should still need to justify in their rulings that they are doing so? They are bound to apply higher court precedent and the higher court precedent has remained the same on this issue since before most of them were born.

In taking the position that the 14th amendment does not incorporate the establishment clause against the states, Madison appears to argue for the more radical position that the 14th amendment doesn’t incorporate any of the bill of rights against the states. Needless to say, that position is completely unheard of among legal scholars and for good reason. Madison writes:

As anyone knows who has bothered to read the speeches of the Fourteenth Amendment’s author, John A. Bingham, and members of the 39th Congress who debated it, knows the Congress went to great pains to make sure such tyrannical rulings by Judge John E. Jones III would never be a remote possibility…

Rep. Bingham made clear at least a half dozen times that the Fourteenth Amendment would never usurp or strike down any rights of either the States or US Citizens. Take for example this statement:

I repel the suggestion made here in the heat of debate, that the committee or any of its members who favor this [Fourteenth Amendment] proposition seek in any form to mar the Constitution of the country, or take away from any State the right that belongs to it, or from any citizen of any State any right that belongs to him under that Constitution.

One of the great rights that States and their citizens retained was the right to regulate religion, speech and the press.

This is profoundly ahistorical and completely out of context. When Bingham said that the 14th amendment would not take away from any state the right that belongs to it, he did not mean that it would not take away any authority that the states had prior to the passage of the 14th amendment. Indeed, he could not possibly have meant that or it would have rendered the 14th amendment completely devoid of substance. The 14th amendment had to prevent the states from doing something, and the restrictions placed on the states by the 14th amendment were spelled out explicitly by Bingham: they were the same restrictions placed upon Federal authority prior to that amendment by the Bill of Rights.

When he presented the amendment to the House for debate, Bingham noted its necessity by pointing out that up to that point, “these great provisions of the Constitution, this immortal bill of rights embodied in the Constitution, rested for its execution and enforcement hitherto upon the fidelity of the States.” He proposed to change that by giving the Federal government the power to enforce the bill of rights against state action with his amendment, and he consistently invoked the bill of rights as representing the privileges and immunities to which he referred:

Is the Bill of Rights to stand in our Constitution hereafter, as in the past five years within eleven States, a mere dead letter? It is absolutely essential to the safety of the people that it should be enforced…’Mr. Speaker, it appears to me that this very provision of the bill of rights brought in question this day, upon this trial before the House, more than any other provision of the Constitution, makes that unity of government which constitutes us one people, by which and through which American nationality came to be, and only by the enforcement of which can American nationality continue to be…’What more could have been added to that instrument to secure the enforcement of these provisions of the bill of rights in every State, other than the additional grant of power which we ask this day?…Gentlemen who oppose this amendment oppose the grant of power to enforce the bill of rights.

He further noted, in later debate over whether the amendment was required to enforce the Civil Rights Bill that was making its way through Congress, “I have advocated here an amendment (the 14th amendment) which would arm Congress with the power to compel obedience to the oath, and punish all violations by State officers of the bill of rights, but leaving those officers to discharge the duties enjoined upon them as citizens of the United States by that oath and by that Constitution.”

I think one can make at least a coherent argument against the incorporation of the establishment clause specifically, as Clarence Thomas has often done, because it does not establish a specific right (I think his argument is wrong, but it’s at least coherent and not prima facie absurd). But to make the argument that the first amendment itself, including the rights to free speech, a free press and free exercise of religion, was not applied to the states by the 14th amendment flies in the face of the plain words of the men who framed it and over a century of legal precedent. Then he goes on to make an even more bizarre argument:

Probably the funniest part of Judge John E. Jones ruling is the part where he accused several members of the Dover Area School Board to have lied during the trial to cover their motives for promoting intelligent design even as they professed religious beliefs. But like most federal Judges, Jones has no problem himself lying about the Fourteenth Amendment in order to do just what the Fourteenth Amendment forbids: strip away the rights of the States and their citizens.

First of all, the notion that federal judges are lying about the 14th amendment is absurd, as noted above. It is Mr. Madison who is distorting the clear intent of the 14th amendment and dishonestly trying to invoke Rep. Bingham in support of his position. More importantly, the notion that applying the bill of rights to the states would “strip away the rights of the states and their citizens” is even more ridiculous. Think for a moment about what he is arguing here…

He is arguing that the states, even after the passage of the 14th amendment, have the constitutional authority to violate freedom of speech, freedom of the press and the free exercise of religion. By his reasoning, any state could declare an official church, require everyone to attend that official church every week, require every person to confess their faith and belief in that church, and prohibit newspapers and magazines from printing anything contrary to the official church doctrine. And he’s further arguing that preventing the states from undertaking such rank and odious violations of the rights of citizens amounts to “stripping away the rights” of those citizens. Mr. Orwell, you have a call on the white black courtesy phone.

Comments

  1. #1 Jeff Hebert
    December 21, 2005

    Ed wrote:

    He is arguing that the states, even after the passage of the 14th amendment, have the constitutional authority to violate freedom of speech, freedom of the press and the free exercise of religion. By his reasoning, any state could declare an official church, require everyone to attend that official church every week, require every person to confess their faith and belief in that church, and prohibit newspapers and magazines from printing anything contrary to the official church doctrine. And he’s further arguing that preventing the states from undertaking such rank and odious violations of the rights of citizens amounts to “stripping away the rights” of those citizens.

    This is the exact argument made by my boss, the Young Earth Creationist. There’s a group out there that believes the intent of the Constitution was to establish completely independent States, each with absolute authority to do whatever it wanted to its citizens in any regard whatsoever. Slavery, official state religions, any form of government, you name it. And the only recourse of its citizens in the event they dislike the government of that State is to move to a different State. So I asked him, “What if one of the rules the State makes is that it’s illegal to leave?” In that case, their only recourse is armed rebellion, and this is a fit and proper consequence of the way the Constitution is written.

    I used to write him off as just a whacko, but I think that basic underlying reasoning motivates people like PA Madison, Robert Bork, and many others who present a more reasonable facade. I see striking similarities between this “group” and the creationists — a radical interpretation of things the vast majority believe to have long since been settled, an intentional obfuscaion of their motives behind more reasonable-seeming rhetoric, and an alarming degree of behind-the-scenese influence.

    Putting on my conspiracy theory hat, I think radical fundamentalism in America is alive and well, as it is throughout the world. I call this group “Fundamentalist Americans”, believing in a return to the good old days of the “original intent” of either the Constitution or the Bible.

    Usually I just take the hat off again right away and go out for ice cream, but every now and then I get a chilling feeling that it’s not all in my imagination after all.

  2. #2 Matthew
    December 21, 2005

    haha, I love it when extremists will take conversations about anything and somehow find a way to make it an issue of that one thing that’s so important to them. I mean, what was Jones thinking by not making an argument for federal review, public education, and democracy in his ruling?

  3. #3 Dan
    December 21, 2005

    Reconstruction deniers can be such an amusing lot. Here’s another gem from Madison’s piece:

    Soon after the Fourteenth Amendment was passed, the same Congress went on to pass “A Bill To establish a system of common schools for the District of Columbia.” The requirement of this bill was that the “school books used shall be such as shall best promote the acquirement of the branch of knowledge to which each relates, and shall be Christian in their character.” Not exactly the kind of bill you would expect from Congress if the US Supreme Court’s jurisprudence is to be taken seriously at all.

    Now, Madison, care to tell us the rest of the story about the school system that that Congress established? It’s one of those embarrassing facts that “originalists” have to cope with — together, of course, with several Supreme Court precedents having something to say on the subject. I wonder if Madison would deny the legitimacy of those decisions as well. Perhaps we’ll see.

    I put scare quotes around originalists above because I don’t really think Madison qualifies. Originalism is a legitimate interpretive modality, of course, but its legitimacy is premised upon a fair reading of text and history. Denying the constitutional essence of Reconstruction hardly puts one in that camp.

    To borrow a line from Ed, “I’ll take historic revisionism for $1,000, Alex.”

  4. #4 raj
    December 21, 2005

    Rep. Bingham made clear at least a half dozen times that the Fourteenth Amendment would never usurp or strike down any rights of either the States or US Citizens.

    I read the column. Regardless of what Bingham might have said, one can only assume that the author of the column had not read the 1st section of the 14th amendment. It is apparent that the whole purpose of the 14th amendment is to strike down at least some rights of the States.

  5. #5 raj
    December 21, 2005

    Dan at December 21, 2005 02:38 PM

    Correct, and I’ll add a further example. The Alien & Sedition acts passed by Congress in 1798 obviously violated the clear text of the then recently ratified 1st amendment. Congress gets it wrong vis-a-vis the constitution quite often. So do courts–Plessy vs. Ferguson is an illustration of that.

  6. #6 Joshua Claybourn
    December 21, 2005

    I agree with most of this post, but this is wrong:

    First, because the issue wasn’t raised in the case. The defense did not challenge the jurisdiction of the Federal court in this matter, nor did they attempt to make an argument against incorporation. The judge has to adjudicate a case based on the arguments presented to him, he can’t invent his own rationale for why the plaintiffs are wrong and decide the case based upon that.

    In fact, when it comes to jurisdiction he can and must. This originates from the ancient judicial principle called sua sponte (on the court’s own motion). The requirement of subject matter jurisdiction has be held to be so fundamental that a court is required to raise the issue sua sponte and dismiss if it finds a lack of jurisdiction.

    The flip side to this is that parties may voluntarily, knowingly, and intelligently consent to federal jurisdiction even though they don’t comply, which may have been the case here. Also, jurisdiction may have been addressed in a Rule 12(b)(6) motion, as it sometimes is, and that resolution was not included in the final opinion. Either way, though, when it comes to jurisdiction a judge is required to raise the issue on his own.

  7. #7 Joshua Claybourn
    December 21, 2005

    Also, the principle of sua sponte is likely why the author wrote “as usual,” because in fact it ought to contain such arguments. However the judge did briefly address it when he noted that jurisdiction arises under 28 U.S.C. §§ 1331, 1343, and 42 U.S.C. § 1983. That means it primarily arises under federal subject matter jurisdiction, although the judge doesn’t give the grounds for it. It is obvious from the opinion, though, that the subject matter is precisely what you outlined.

  8. #8 Ed Brayton
    December 21, 2005

    Josh-

    You’re right, of course, that a court has to consider whether it has jurisdiction. But since the precedents clearly grant such jurisdiction in this case, a Federal district judge is not free to decide that he doesn’t have such jurisdiction.

  9. #9 Piltdown_Mann
    December 21, 2005

    This seriously misrepresents John Bingham’s views on incorporation. I suggest The Original Meaning of the Fourteenth Amendment by Akhil Reed Amar, available as a pdf file.
    http://islandia.law.yale.edu/amar/lawreview/1996Fourteenth.pdf

    Or Professor Amar’s article at 101 Yale L.J. 1193 (1992)

    In light of all this, it is frankly astonishing that some scholars, most notably Charles Fairman and Raoul Berger, have suggested that when Bingham invoked “the bill of rights,” he didn’t mean what he said.

  10. #10 raj
    December 22, 2005

    Dan at December 21, 2005 02:38 PM

    Correct, and I’ll add a further example. The Alien & Sedition acts passed by Congress in 1798 obviously violated the clear text of the then recently ratified 1st amendment. Congress gets it wrong vis-a-vis the constitution quite often. So do courts–Plessy vs. Ferguson is an illustration of that.

  11. #11 Ed Darrell
    December 22, 2005

    The correspondence between Madison and Jefferson casts an entirely different light. Madison noted to Jefferson that a bill of rights was technically unnecessary because each state already had one, in 1787. Jefferson said, yeah, but what happens if one of the states gets the political fits — good to have a backup. Madison agreed.

    But at the time of the writing of the Constitution, during the ensuing four years during the writign and passing of the Bill of Rights, no state had an established religion. Each state had abolished establishment by the end of 1778, and no state has ever backtracked. When Virginia considered backtracking, they passed Jefferson’s Statute for Religious Freedom instead, hoping to avoid corruption of both church and state, as Madison pointed out each marriage of church and state had done in the previous 1,500 years.

    This “federalist” also seems to have missed one of the key points of ratification: The states didn’t ratify, the people did. Madison threw this twist into the process to avoid Patrick Henry’s lapdog legislature in Virginia stopping the whole process. It is not that actions prohibited to the federal government are by default the territory of the state governments. If there is no specific delegation, the power remains with the people, individually and collectively.

    Don’t these guys ever read the Constitution they propose to worship?

  12. #12 Ed Brayton
    December 22, 2005

    Ed Darrell wrote:

    But at the time of the writing of the Constitution, during the ensuing four years during the writign and passing of the Bill of Rights, no state had an established religion. Each state had abolished establishment by the end of 1778, and no state has ever backtracked.

    I’m afraid this is not quite accurate. Several states had established churches at the time of the Constitution being written and ratified. Connecticut, for instance, was officially Congregationalist, which is what led to the Danbury Baptists writing to Jefferson in 1801 and led Jefferson to reply in his famous letter that included the phrase “separation of church and state”. The Danbury Baptists wrote to him expressing their hope that his work on disestablishment in Virginia and at the national level would filter down to their state and lead them to disestablish their official church. Massachusetts had an official church until 1780, which was then replaced by a multiple establishment, which was then finally revoked in 1833. New Hampshire disestablished in 1890.

    You are of course right to point out the importance of the Virginia Act for Establishing Religious Freedom. This is one of the most important acts of our entire founding period and it launched a movement to disestablish state churches around the nation. But that movement was not entirely successful until the early 19th century.

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