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".

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.