STACLU on Judging from the Legislature

Our pals at STACLU are quoting a blog post by a lawyer named Ray Kraft, encouraging Congress to pass legislation defining the terms of the Constitution so that the courts can't. Here's Kraft's suggestion:

"But there is a Third Way here - and that is for Congress to debate and define, by legislation, the controversial and undefined terms in the Constitution, such as "an establishment of religion." I cannot find or think of any reason why it would not be within the power of Congress to do so, and it would not require an amendment of the Constitution, so long as the legislated definition was consistent with a plausible and reasonable reading of the Constitution. Congress would not remove or change the phrase, "an establishment of religion." It would simply define the phrase - deciding what "an establishment of religion" means - something that the courts have been grappling with for decades. This might be a long and controversial debate in Congress, but it would be a good debate for us to have.

And this would not be unconstitutional, as long as the legislative definition of "an establishment of religion" was consistent with the apparent intent of the First Amendment - which is, obviously, to protect the broadest possible scope of religious freedom, and to prohibit an official or State religion.

Most importantly, by defining these controversial clauses and phrases in the Constitution, Congress could dramatically limit the ability of the ACLU and its ilk to challenge the free exercise of religion in public places, and other liberties that the ACLU and others do not think Americans should have. So long as the legislation was not vague and ambiguous, and was not clearly unconstitutional, the Court would be bound by the definitions adopted by Congress, since, unless the law is vague and ambiguous, or clearly unconstitutional, the Court must defer to the legislative power of Congress. Congress writes the laws, the courts interpret and enforce them. If the law is clear there is little room for interpretation, and the courts can only enforce it.

This is all quite silly. Whether Congress passes a statute interpreting the Constitution or not, the courts will still have the final say. And if the Congressional interpretation is at odds with theirs, that interpretation loses. The courts were set up and made independent from the legislature for precisely that purpose. It might be an interesting debate, but it isn't going to change a thing. And as is standard for the anti-ACLU crowd, Kraft plays fast and loose with his terminology to conflate two very different things. He writes:

But it will not prevent the ACLU from filing, and sometimes winning, its lawsuits, which generally take the position that any reference to the religious faiths and heritage of the American people on public (government) property is a violation of the first clause of the First Amendment of the U.S. Constitution, "Congress shall make no law respecting an establishment of religion . . ."

The ACLU does not give equal attention, of course, to the rest of that sentence, which continues: " . . . or prohibiting the free exercise thereof; or abridging the freedom of speech . . .," which, it seems to me, should include the freedom to express religious ideas and traditions in public places for the more than 90% of all Americans who are religious, and the more than 90% of those who are Christian. The ACLU seems to take the position that the First Amendment does not guarantee freedom of religion, but freedom from religion, as it did in the Pledge of Allegiance cases, in which Dr. Newdow and the ACLU asserted that the phrase "under God" in the pledge of allegiance was unconstitutional because it was personally offensive to Dr. Newdow, claiming, in effect, that any acknowledgment of religious faith in a public context that is offensive to anybody is an "establishment" of religion.

The anti-ACLUers love to use phrases like "ackowledgement of religious faith in a public context" and "express religious ideas and traditions in public places", but that is not what the ACLU challenges at all. There is a difference between the expression of religious ideas in public places, which goes on thousands of times a day every single day without anyone questioning it or challenging it, and the endorsement of religious ideas by government agencies.

People can and do use public property to hold religious rallies and meetings all the time. Anytime there is a traditional or designated public forum, religious groups can take advantage of that forum on an equal basis with non-religious groups, and they do so every day. Every day there are rallies, marches, concerts and events of a religious nature in public parks, on the grounds of a state capitol building or a courthouse, and so forth. No one, including the ACLU, tries to stop them. This is the expression of religious ideas in public places.

What the ACLU objects to is when government agencies endorse a particular religious faith by giving exclusive access to one group (as in an ongoing case in MIchigan where the city council funds and puts up a nativity display every year but does not allow any other religious group to put up similar displays) or by using tax dollars to promote a particular religion. And that's a very different thing. As an individual, you have the right to use public property, rent facilities, and so forth, on an equal footing with every other individual. You do not, however, have a "right" to have the government endorse your beliefs, or allow only your beliefs to be promoted and expressed.

The fact is that the "public square" that the religious right likes to talk about is full of religious expression. In addition to rallies and marches on public property that I spoke of above, every single day, thousands of times per day, a politician speaks in public and in the public square about his faith. And they have an absolute right to do so. What they can't do is ask the government to endorse that faith.