Dispatches from the Creation Wars

Not-So-Glib Fortuna, Take 2

Or three, perhaps, since I already wrote one lengthy reply in the comments of the first post. How he’s back with a second comment, which is little improved from the first one.

Yes, Ed, I understand that your blog enjoys more traffic, but if you’d like to challenge me in the future, at least notify me with a link in my comments section. Otherwise, all you’re doing is whispering behind someone’s back in a room full of your friends and pretending you’ve somehow won the debate.

The trackback gets sent, and Jay obviously reads this page when it happens. You somehow managed to find your way back here twice, so obviously this just isn’t a problem.

Being that you and I have a similar weakness – far too much to say already with the accompanying focus-killer that is the need to ensure that every contention made by the interlocutor of the moment is answered.

Sorry, this is false. I only respond to those contentions which are badly reasoned or not supported by the facts. The rest I’ll happily agree with.

1)It is very important to know the position of the person you are challenging. You accuse me over being overbroad (something else I’ll get to in a moment) yet you didn’t even bother to ask my view before assuming where I stood, and attacking this invented presupposition. It is also very important to use LIKE illustrations. State constitutional amendments are much different from stupid decisions by education bureaucrats. I didn’t “miss your point,” I called you out for presenting a poor comparison.

I’m afraid you’re still missing the point. Your rhetoric is simply far too broad and not focused on the real objection you have. If you recognize, as you do, that sometimes laws passed through the democratic process ought to be challenged in court, then it is false and absurd to accuse them of “lack of respect for the democratic process”. It’s not the fact that they object to the democratic process that is a problem, because there are times when you object to that process. The problem is that you think they’re wrong in specific circumstances on the issue of the constitutionality of the law. So make that argument. If you want to argue that their objections to a democratically passed law are weak or constitutionally dubious, then make that argument. But to argue that they’re wrong because they’re objecting to a law passed democratically is incoherent and inconsistent.

And by the way, none of the three examples I used involved “education bureaucrats”. School boards are democratically elected, and school boards set policy. In the case of Lamb’s Chapel, it was a school board policy that prevented religious groups from using school facilities. Thus, that was an example of the “democratic process” resulting in an action that was challenged in court (and rightly so, of course, that action was clearly contrary to the first amendment). And by the way, one of the groups helping challenge that law in court was – guess who – the ACLU. Yes, the ACLU filed an amicus brief on behalf of Lamb’s Chapel and urged that the school board policy be overturned on first and fourteenth amendment grounds. But that just highlights my point further – surely you would not condemn the ACLU for their “lack of respect for the democratic process” in that case. You only object to that when you don’t like the argument they’re making – so object to the argument they’re making, not to the fact that it happens to conflict with the “democratic process”.

2) You know, I thought about it, and you are right. I was overly broad in my original post. I thank you for keeping me honest and forcing me to rethink my presentation. My more nuanced argument would go something like this, “It is not surprising that the ACLU has come to depend heavily on subverting our law and our culture by using the courts as a weapon to impose their vision of society on America without the consent of the governed, their agenda being very unpopular in America. Groups opposed to the ACLU have occasionally used the courts to challenge decisions made by the people through legitimate democratic means, but the ACLU and its allies have cornered the market on a large-scale legal strategy that that wields the courts as a sword that severs the people from their proper place as ultimate arbiter of a public policy. Thankfully, this week has prodcued a stinging string of rebuke of several strategies used by the ACLU to impose a radical redefinition of marriage on America.” I know you still won’t agree with my view, nonetheless you have done me a service.

This is still far too broad. The courts are supposed to act contrary to the results of the democratic process. They were designed precisely for that purpose. Complaints based on scale are meaningless because all of this is a matter of historical circumstance. Conservative groups don’t object as much to legislative actions as liberal groups at the moment because conservatives have control of the Congress and most state legislatures as well. That wasn’t always the case. Ironically, the phrase “judicial activism” was originally coined to describe conservative judges who kept striking down provisions of FDR’s New Deal (that’s what led to FDR’s court-packing scheme, which thankfully he didn’t manage to pull off). The political winds shift. At one time, one side has control of the legislature and the other is more likely to use the courts to push their agenda; at other times, the sides flip. But for either side to offer up this kind of broad rhetoric against behavior they exhibit themselves when it’s convenient to do so is hypocritical and incoherent. If you want to object to the specific argument they’re making in court, then do that. But drop all this silly rhetoric about subverting the democratic process.

3) Related to the last point. It is not inconsistent to generally give deference to the results of the democratic process but to support court intervention in a limited number of egregious cases and to acknowledge which side as a matter of long-established legal strategy depends on partisan judges to do their bidding in hijacking the normal course of our form of government when they don’t like the result and which side does not.

It certainly isn’t inconsistent to support court intervention when you really think the law passed by the legislature is unconstitutional. I do the same thing, so do you, so does everyone. The inconsistency is with your overly broad rhetoric about “lack of respect for the democratic process”. If one believes a law to be unconstitutional, they should challenge that law in court, regardless of whether it was passed democratically or not. The issue is not whether it was passed by a legislature, the issue is whether it’s constitutional or not. So make the argument where it belongs.

And your reference to “partisan judges” is, itself, an example of partisan thinking. The fact is that most judges are not the least bit partisan. They make rulings all the time that go against position of the political party they belong to (Judge Jones in Dover, for example, or Judge Birch in the Schaivo case, or Justice Scalia in the flag burning case). The fact that some judges agree with the ACLU’s position doesn’t make them “partisan” any more than it makes the judges who disagree with the ACLU’s position “partisan”. There are two sides to these issues (only two sides, unfortunately, despite the efforts of folks like me who think both sides are wrong). To call one side “partisan” and the other not is, quite literally, to say nothing. It’s just empty rhetoric. Those who agree with you are just as “partisan” as those who don’t.

This is what I argue the ACLU has done over and again, especially in regard to the sheer number of unique and alien arguments in marriage cases, which is a point I made in my original post – they will attempt to drive a boot into the neck of an unwilling public by any means necessary. The Right is generally more likely to accept results of elections and referenda, turning not to the courts, but using the front door – look at what has happened in Massachusetts.

But this is simply nonsense. When the right went to court to get Oregon’s assisted suicide law overturned – a law passed twice by popular referendum and by wide margins – why is that not also an example an “attempt to drive a boot into the neck of an unwilling public by any means necessary”? When they went to court to overturn California’s medical marijuana law, why is that not an example of the same thing? The tactics used are purely a matter of convenience, and you’re completely wrong about Massachusetts. The first response from the right was to try and overturn the SJC’s ruling in Federal court. Matt Staver’s group, Liberty Counsel, filed a Federal lawsuit making what was simply the most breathtakingly ridiculous argument I’ve ever heard in an attempt to overturn that ruling (he actually argued that the ruling violated the constitutional requirement that states have republican forms of government, for crying out loud – the courts probably spent as much time controlling their laughter as they did dismissing the case – which they did). The fact is that both sides use whatever means are at their disposal to forward their agenda. Yes, you do it too. So quit pretending you don’t and quit pretending that only the other side does. It’s ridiculous and it only makes you look absurd.

You mention a couple anomalous cases, but if you look at big picture, conservatives normally live with what is until they can change it at the ballot box.

Again, this is just historically ignorant and dubious. When the left has control of the legislatures, as they did in the New Deal, the right was more than happy to use the courts. And the left made the same arguments you’re making now – look at their lack of respect for the democratic process! They want judicial tyranny! It was absurd then and it’s absurd now. The two sides just exchange scripts based on who has control of the legislatures at the time. Rational people see through the rhetoric.

By extension, lawyers of the Right normally appeal to and rely on more well-grounded legal reasoning, while lawyers of the Left attend conferences on “Transhumanism” and discuss how to secure rights for “post-humans” and how to establish a defense for animals against “human racism.” I know you will claim that these are outliers, but what Federalist Society conference would yield such a circus side show? What side reveres Peter Singer and takes his ideas seriously?

I love this kind of argument. Peter Singer is an obscure academic making ridiculous arguments – and arguments that have nothing at all to do with any constitutional question, so what on earth is the point of bringing him up? Your argument here is positively idiotic – “conservatives are right because there’s this one guy on the left who has crazy ideas”. Well for crying out loud, how easy is that to counter? You want guys on the right who have crazy ideas? How about RJ Rushdoony? Gary North? How about all the reconstructionists who think that the Mosaic law is the law of the land? How about Roy Moore, who thinks that gays should be thrown in prison or executed?

For that matter, how about Robert Bork, an alleged “originalist” who reads whole amendments out of the constitution to suit his agenda? The man who thinks that the first amendment only protects explicitly political speech and not scientific, artistic, or any other kind of speech? The man who thinks that one person who wants to control what someone else does and another who only wants to control his own actions have equally valid claims that no court is capable of distinguishing between? And unlike Peter Singer, a man considered a joke by most liberals, Bork is still revered on the right and his views have a direct impact on constitutional law.

Look, if you want to make the argument that the ACLU is wrong in some particular case, then make that argument. The problem is that you keep wanting to focus on the broadest possible arguments – “the ACLU is wrong because they’re on the left, and here’s this other person on the left I think is crazy” or “the ACLU is wrong because they have no respect for the democratic process.” All of that is a subterfuge for the real argument, which is the argument over whether their position is right or wrong as a matter of constitutional law.

Forget all the partisan thinking and focus on the arguments. When religious right legal organizations are right on the constitutional issues, then I openly say that they’re right. The ACLJ was right in Lamb’s Chapel. The Rutherford Institute is right in the Brittany McComb case in Las Vegas, where they cut off her mic during graduation (and yes, that means the ACLU is wrong in that case). I think the ACLU was wrong in Good News Club, I think they were wrong in the LA County seal battle, and I think they were wrong in the CLS’ lawsuit against Hastings School of Law. If they’re wrong, they’re wrong on the constitutional question; they’re not wrong because they oppose a democratically passed law (which we all object to at times), nor are they wrong because they’re “liberal” and you can come up with nutty liberals (because I can come up with nutty conservatives too, but that doesn’t make the ADF wrong on anything either).

4) Madison as a stricter separationist than the modern ACLU is a big stretch Ed. Yes I have read M&R and we probably see that document through different eyes, but all that it too much to get into right now. That Madison opposed paid chaplains is a well established fact. However, did his view prevail?

I apologize, I referenced the wrong document. I intended to mention not the Memorial and Remonstrance, which is a relatively moderate document he produced in opposition to Patrick Henry’s bill for a general religious assessment, but the Detached Memoranda, the commentary on the religion clauses of the first amendment that he wrote after he left public office. And anyone who reads that document would not find it any stretch at all to say that Madison was a stricter separationist than the modern ACLU. Whether his view prevailed or not is irrelevant to the question of whether they were his views, which is all that I implied. But the reality is that sometimes he won the battles (as when he defeated Henry’s bill in Virginia) and sometimes he lost them (as when he didn’t get the first amendment applied to the states as he wanted).

How vociferously did Madison oppose the Northwest Ordinance?

What difference could that possibly make? That ordinance was passed by the Congress of the Confederation, before there even was a Constitution. Madison was not a member of that body. In fact, at the time that the Northwest Ordinance was being passed under the Articles of Confederation (summer of 1787), Madison was at the Convention writing the new constitution. This has no bearing at all on Madison’s views.

Did Madison attempt to prevent what would become the largest congregation in the country at the time from worshipping at the Capitol building with the Marine Corps Band providing music every week?

This is a bit of a misnomer; at the very least, it’s oversimplified. When the seat of government moved to Washington DC in 1800, the Senate chambers were completed but the House chambers were not. A hastily built structure that they called “the oven” was put together for the House to meet in, but since the Congress was only in session for part of the year, it was used for many purposes, including church services. In 1801, Statuary Hall was finished and became the House chambers, but again, that building was used for many different purposes.

Would Madison have objected to that? Certainly not. But why should he? It is still a matter of law today, and the courts have protected it, that religious groups have a legal right to use government facilities that are open to public groups to use. Churches meet in school buildings and the like all over the country every week, and even the ACLU does not object to it. So Madison’s position is quite consistent with what I said, and with the ACLU’s position today.

Madison, as demonstrated in M&R and elsewhere, was far more worried about government infecting religion and conscience than he was about religion influencing government.

Absolute nonsense. Read the Detached Memoranda, the first sentence of which warns against “silent accumulations and encroachments by Ecclesiastical Bodies” that, he says, have been ignored and therefore will continue to build up until the establishment clause is essentially voided. He argues against tax exemptions for churches, he argues for restrictions on church charters and he argues against military chaplaincies – these are positions not even the ACLU would take. He even argue for laws that would limit the amount of property a church could own:

But besides the danger of a direct mixture of Religion & civil Government, there is an evil which ought to be guarded agst in the indefinite accumulation of property from the capacity of holding it in perpetuity by ecclesiastical corporations. The power of all corporations, ought to be limited in this respect. The growing wealth acquired by them never fails to be a source of abuses. A warning on this subject is emphatically given in the example of the various Charitable establishments in G. B. the management of which has been lately scrutinized. The excessive wealth of ecclesiastical Corporations and the misuse of it in many Countries of Europe has long been a topic of complaint. In some of them the Church has amassed half perhaps the property of the nation. When the reformation took place, an event promoted if not caused, by that disordered state of things, how enormous were the treasures of religious societies, and how gross the corruptions engendered by them; so enormous & so gross as to produce in the Cabinets & Councils of the Protestant states a disregard, of all the pleas of the interested party drawn from the sanctions of the law, and the sacredness of property held in religious trust. The history of England during the period of the reformation offers a sufficient illustration for the present purpose.

Are the U. S. duly awake to the tendency of the precedents they are establishing, in the multiplied incorporations of Religious Congregations with the faculty of acquiring & holding property real as well as personal? Do not many of these acts give this faculty, without limit either as to time or as to amount? And must not bodies, perpetual in their existence, and which may be always gaining without ever losing, speedily gain more than is useful, and in time more than is safe? Are there not already examples in the U. S. of ecclesiastical wealth equally beyond its object and the foresight of those who laid the foundation of it? In the U. S. there is a double motive for fixing limits in this case, because wealth may increase not only from additional gifts, but from exorbitant advances in the value of the primitive one. In grants of vacant lands, and of lands in the vicinity of growing towns & Cities the increase of value is often such as if foreseen, would essentially controul the liberality confirming them. The people of the U. S. owe their Independence & their liberty, to the wisdom of descrying in the minute tax of 3 pence on tea, the magnitude of the evil comprized in the precedent. Let them exert the same wisdom, in watching agst every evil lurking under plausible disguises, and growing up from small beginnings. Obsta principiis.

Not only would the ACLU not take such a position, they’ve gone to court on behalf of numerous churches, including Jerry Falwell’s church, to overturn state and local restrictions on how much property a church can acquire. So yes, I think it can very safely be said that Madison’s position on church and state was actually more staunchly separationist than the ACLU’s (or mine, by a considerable margin). He also spoke out against government proclamations of any kind regarding religion:

Religious proclamations by the Executive recommending thanksgivings & fasts are shoots from the same root with the legislative acts reviewed.

Altho’ recommendations only, they imply a religious agency, making no part of the trust delegated to political rulers.

The objections to them are 1. that Govts ought not to interpose in relation to those subject to their authority but in cases where they can do it with effect. An advisory Govt is a contradiction in terms. 2. The members of a Govt as such can in no sense, be regarded as possessing an advisory trust from their Constituents in their religious capacities. They cannot form an ecclesiastical Assembly, Convocation, Council, or Synod, and as such issue decrees or injunctions addressed to the faith or the Consciences of the people. In their individual capacities, as distinct from their official station, they might unite in recommendations of any sort whatever, in the same manner as any other individuals might do. But then their recommendations ought to express the true character from which they emanate. 3. They seem to imply and certainly nourish the erronious idea of a national religion. The idea just as it related to the Jewish nation under a theocracy, having been improperly adopted by so many nations which have embraced Xnity, is too apt to lurk in the bosoms even of Americans, who in general are aware of the distinction between religious & political societies. The idea also of a union of all to form one nation under one Govt in acts of devotion to the God of all is an imposing idea.

Repeatedly in this document he refers to “encroachments by ecclesiastical bodies”, not encroachments against them. He is clearly speaking of attempts by religious groups to control the government, not the contrary. And he argues several times throughout the document that it is important to resist every single instance of such encroachment, no matter how minor or non-coercive, lest a precedent be set by which future encroachments would be justified.

One powerful example is that Madison, as I’m sure you know, wanted to die on a hill during Convention and ratification debates to proscribe a bill of rights, as he was convinced that the unamended Constitution would suffice in protecting religious liberty. However, he had a constituency at home that distrusted the majority religion and who’d also been responsible for Madison’s election – the Virginia Baptists. Only after these evangelicals repeatedly reminded Madison of their role in his securing office and their desire for religious liberty to be enumerated did he flip-flop in a big way and even author what he’d previously loathed. I can only imagine Ed, how you and your buddies here would be calling for that “dominionist” Madison’s head had he been alive today and so heavily influenced by evangelicals!

Wow, this couldn’t possibly be any more wrong if you had tried intentionally to write nonsense. Yes, Madison was initially opposed to the addition of a bill of rights to the Constitution, but this ridiculous rhetoric that he “wanted to die on a hill” to prevent it is just plain silly. The man who was sent by the Virginia Baptists to the ratifying convention, John Leland, was a Baptist minister and one of the staunchest defenders of strict separation of church and state. And yes, he did prevail upon Madison on the importance of a bill of rights, but so did Thomas Jefferson and George Mason. It was in a series of letters exchanged with Jefferson, who was in France at the time, that Madison slowly changed his view as he realized that Jefferson’s arguments were sound. Those “evangelicals” you are so concerned about were extremely strict separationists.

5) Finally, on penumbral reasoning. Yes, I would like to see Reynolds’ article. Please send me the link.

Follow this link.

But…saying the 9th Amendment “demands” penumbral reasoning is like saying the anal tumor on that abused Doberman found by Animal Cops Detroit is required for its survival since it is there.

Uh, no. What an idiotic analogy. At the very least, one cannot pretend to be an “originalist” while reading the 9th amendment out of the constitution.

Stripping away important context using Constitutional isogesis, it is understandable where you and many others would conclude this. I’m sure conservatives deal in the “is” rather than the “ought” in some cases, so I am not making an argument that the Right never employs this reasoning because the Left has gained home field advantage and made up many of the rules. In your “middle ground” between “seps” and “acoms” argument you’ve related the tortured and incomprehensible judicial philosophy of Chief Obfuscator Sandra Day O’Connor, who in Lynch v. Donnelly was at her worst on the subject. Her “reasoning” reminded me of an expository writing assignment where you are asked to take a mundane activity like opening a box of cereal and writing directions with the intent to make the exercise as difficult as possible. Sending “a message to non-adherents that they are not full members of the political community” is a violation of the Establishment Clause? Come on! Meaninglessness disguised as high legal analysis can only lead to treachery…and it has.

This is a bunch of gobbledygook masquerading as analysis. The fact – and it is undeniable – is that conservative “originalists” tend to take the one position that the founding fathers made explicit one could not take: the position that if a right is not specifically enumerated, then it does not exist. They said very clearly that there was no way they could possibly list all of the rights one has, nor should they even attempt to do so. And they worried that by listing some of them, it would lead people later to argue that because a given right is not listed, then it’s fair game for government to regulate – and that is precisely the argument that conservatives make today, the very argument that the founders said as explicitly as possible could not be taken. Here are the words Madison used in introducing the 9th amendment:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [the Ninth Amendment].

The conservatives have it exactly backwards. When a conservative asks, “Where does the constitution say you have a right to do X”, they should be asking, “Where does the constitution give the government the authority to prevent you from doing X”. The one position that is absolutely ruled out is the one that says that if a given right is not explicitly listed, it doesn’t exist and the government can do whatever it wants in that regard. The courts must deal with issues of unenumerated rights and they must develop some criteria by which to discern legitimate assertions of unenumerated rights and illegitimate ones. And whether you like it or not, that will always involve penumbral reasoning. It’s inevitable. indeed, it’s mandated by the 9th amendment.

Nowhere in the constitution is there any mention of a right to send one’s children to a private school. It is completely non-existent. Yet in 1925, the Supreme Court ruled that such a right, while unenumerated, was entirely legitimate and could not be violated by the legislature. The ruling was both unanimous and undoubtedly correct. But why do we not here about those “activist judges overruling the clearly expressed will of the people through their elected representatives” or their having “invented a right out of thin air that was nowhere mentioned in the constitution”? Because the people who use such rhetoric agree with the outcom of the case. So here again we have a perfect example of using overly broad rhetoric in an inconsistent and incoherent manner. The objection is not to the court inventing rights not specifically mentioned in the constitution, the objection is only to the court inventing rights that they disagree with.


  1. #1 koszmic
    July 16, 2006

    Wow, Ed, that was a really interesting post/fisk. I learned a lot from this, particularly the section you write about the fear that an enumeration of rights in a bill of rights may lead to arguments against non-enumerated ones. I am off to read the text of the 9th amendment now.

  2. #2 plunge
    July 16, 2006

    Geez. Peter Singer always comes out for a bashing in these discussions, no? And yet, you never hear anyone seriously debate his actual views: just the usual pack of lies and mistruths.

  3. #3 Skemono
    July 16, 2006

    It is not surprising that the ACLU has come to depend heavily on subverting our law and our culture by using the courts as a weapon to impose their vision of society on America without the consent of the governed

    And yet the courts agree with them… so how can it be the ACLU subverting the law? Stop the Activist Judges!

    Oh, and Mr. Fortuna?

    Stripping away important context using Constitutional isogesis

    I think the word is eisegesis.

  4. #4 Jody
    July 16, 2006

    Ed, I’m always in awe of your legal posts — I just learn so much, even about stuff I thought I knew well.


  5. #5 Treban
    July 16, 2006

    Peter Singer does seem to get a bad rap. He does have some views that tend towards the extreme but for the most part he is really quite reasonable. And even where he starts to get a little extreme he is not as bad as his critics like to claim. Most arguments I have heard against him are contrary to the reality of what he actually says. Whatever you want to say about him – the worse I would argue being that he takes a very clinical aproach to life and death – he is brilliant, and very good at writing objectively.

  6. #6 dogmeatIB
    July 16, 2006

    I find it amusing that conservatives so regularly claim that some element of their opponent’s agenda (or a tactic used by their opponents) is unheard of, unusual, beyond the pale, etc. I had a con’ tell me that the (then) Democratically controlled Senate refusing to confirm President Bush’s appointees was unconscionable, unheard of partisan politics, and possibly illegal. I asked him, “was this the case while the Republican controlled Senate did the same thing to Clinton from 1995 to 2001?” He said, “they did?” I said, “yes.” He replied, “well they must have been bad appointments then, that was OK.”

    Ed, I love your grasp on the history of the court, founding fathers, etc. I’m figuring out a way to have my students read your political blog as part of their government class because your grasp of the issues…

  7. #7 Beaming Visionary
    July 16, 2006

    I see Glib hasn’t become any more insightful since this display:


  8. #8 raj
    July 17, 2006

    “…the ACLU is wrong because they have no respect for the democratic process.”

    What “Not-So-Glib” Fortuna seems to fail to understand is that testing the “results” of the “democratic process” against the constitution (federal or state) is part of the democratic process. If the polity is sufficiently offended by the courts’ determination, the respective constitution can be amended–again through a democratic process.

    Really, these people who bitch and moan about the ACLU are ridiculous.