fromtheright

SLD,

I've almost finished reading the opinion and while I don't think Moore's monument is an establishment in the sense that term was understood at the time of the Framing his Lemon entanglement does smack of an ethical breach in the close relationship witn Coral Ridge throughout the history of the "brick". But that does lead me to ask the question: assuming it was going to be placed anyway, who would you rather have pay for it, taxpayers or through private funds?

Also, are you not a little troubled over the court's finding fault based in part on who is financing Moore's legal defense? Regardless of my contempt for Moore and his motives, it troubles me that a Court would "convict" someone partially on the basis of who is providing his legal defense.

Gene

Coragyps

Utterly OT, but the mention of Rudy Roy Moore gave me a shock until I figured out that I was thinking of <a href="http://www.dolemite.com/index2.php?body=main" target="_blank">Rudy Ray Moore.</a> Altogether different philosophical leanings. Rudy Ray leans more toward
"Dolemite went down to Kansas City
Kickin asses 'till both shoes was s**tty."

SLD

Even Moore is not stupid enough to go so far as to have taxpayers fund it. He would even lose a lot of support from his main constituents. I confess I haven't read the whole opinion, but would agree that it is irrelevant as to who would fund his defense.


And I do think Madison however would in fact disapprove of the monument as a violation of the establishment clause. Not all of the Founders would have agreed with him, but Madison's strict separationist position is undeniable - the man even believed that a military Chaplain Corp violated the Constitution.

SLD

RufusAtticus

Why are private funds being used to decorate to rotunda--is it a rotunda?--of the AL Supreme Court?

I don't think they used it to find against him, but rather as part of the pile of evidence that Moore and Coral Ridge are in "buisness" together. When organizations that do seek to merge church and state are employed to defend an action of an agent of the state against a first amendment lawsuit, it good evidence that there is a violation.

~~RvFvS~~

fromtheright

SLD,

I too am pretty certain that Madison would disapprove, but my point is that the history of the period includes definite examples of established religions and that the Founders sought to protect religious liberty by prohibiting Congressional establishment of same (I still need to do some study on incorporation through the 14th Amendment but my initial impression is that while free exercise would probably have been among the liberties extended through the privileges and immunities clause, the unique history of state establishments doesn't lend itself quite so easily to incorporation, though the evaporation of established churches long before the Reconstruction amendments may considerably weaken my point). While the "brick" would probably come well within Madison's rather broad construction, his is not the only voice or experience to be sought. The monument is nowhere near an establishment of religion as those who adopted that language were familiar with true established religions. Oh yes, "respecting an establishment". But let's still not ignore the final word of the phrase.

Interesting to me, I just discovered a personal connection to the case. Richard Hahnemann, noted in the opinion as the one who designed the monument, is a friend of mine here in Huntsville, through my son, as both our sons were in Cub Scouts together a few years ago. Dick's not the fire-breathing fundie you guys fear but a respected sculptor. I would love to get his twist on this whole affair.


Rufus,

Why are private funds being used to decorate to rotunda--is it a rotunda?--of the AL Supreme Court?

A good question, but my question is which is more objectionable to those who disapprove of it? It would seem much more objectionable, as it would be to me, if taxpayer funds had been used.


I don't think they used it to find against him, but rather as part of the pile of evidence that Moore and Coral Ridge are in "buisness" together.

You may be right, but it still troubles me that, even if it is the same party with which Moore became Lemon-entangled, the court included the source of his defense funds as an element which was considered. I don't think Judge Thompson would have decided differently if someone else were providing the funds but I still find it troubling that the Court included it as an element.

[ November 24, 2002: Message edited by: fromtheright ]</p>

SLD

First of all, I apologize for taking so long to get back to you, FTR. Your point is actually well taken. Madison’s view is not the only voice or experience of the Founders that we should examine, but it is the most important. What your point really raises is a larger question of how we construe the Constitution. Original intent? Undoubtedly important, but impossible to follow strictly. The Founders themselves disagreed on how to interpret the Constitution, so for one it’s impossible to establish conclusively. Furthermore, we don’t follow the founder’s intent, and not even the most reactionary right winger out there, with the possible exception of some KKK nuts or so, believes that we should. What does Freedom of Speech mean? I assure you it means something quite different to us than it did to the framers of the Bill of Rights. Indeed, our modern view of Free Speech was crafted by Holmes and Brandeis, with no input or debate about what the framers thought. However, it is more close to Madison and Jefferson’s view than to Adams and the Federalists views. If we were to follow the framers views of free speech, we would still have the law of seditious libel on the books.

The point is, the debate over original intent is essentially meaningless – kind of like the debate over biblical literalism. People use the founders the way fundys cite God. Just like Christians love to pick and choose Bible quotes to support a variety of contradictory opinions, we can pick and choose founder’s quotes to support whatever Constitutional position we like. However, to paraphrase Holmes, experience is the handmaiden of the law – not reason alone. We should not be bound by any one particular viewpoint on the Constitution, and even the framers would agree on that. They left us a broad, vaguely worded document that is open to a variety of interpretations. Madison himself refused to publish his notes on the convention because he didn’t believe that we should be guided by such in interpreting the Constitution. They weren’t published until after his death. Jefferson believed that the Constitution should only last 20 years because future generations should not be saddled with their particular viewpoints on government: “The earth belongs to the living.” Madison convinced him that wouldn’t be the wisest way, but that was part of his objection to having a bill of rights in the first place – that later generations would view it as limiting freedom and not expanding it (hence the 9th Amendment).

Even accepting a more “original intent” view to the Constitution doesn’t get you off the hook, though, FTR. There is a principle of statutory construction which holds that the views of the principle sponsor of the legislation are entitled to the most respect, and then to other supporters of the bill. Madison was the primary sponsor of the Bill of Rights and is responsible for sheparding the bill through Congress. Thus his views on it are entitled to more weight than others who simply voted in favor of it.

Your other point concerns the impact of the 14th Amendment. In its original form, indeed the First Amendment did not apply to the States and the States were initially allowed to establish religions if they so chose. Some did, including Massachusetts which did not get rid of their state religion until the 1830’s. The 14th Amendment specifically states that the Citizens of each state are Citizens of the United States and that all Citizens are entitled the “privileges and immunities” from the states that they are entitled from the U.S. While much ink has been spilled as to whether these words meant to incorporate the entire bill of rights, suffice it to say that the Supremes rejected the entire incorporation thesis (as argued vehemently for by Alabama’s own Hugo Black) for a piecemeal incorporation of various parts of the bill of rights.

It has been argued, academically, that the establishment clause should not be incorporated by the 14th Amendment because it does not convey a specific liberty on any individual. Unlike, free speech, we don’t have a liberty interest in separation of church and state. However, I think that view is seriously flawed. Separation of Church and State is a personal liberty. The framers didn’t put the clause in there because they thought it was a good idea in principal that Church and State should remain separate, but because they understood that state sponsored religion was ultimately repressive of individual liberties. In fact, the monument in question is a good example of this. Anyone who thinks that this lawsuit is over whether we infidels are merely offended by the monument is sorely mistaken. The monument represents the view that non-subscribers to Judge Moore’s religious views need not apply for justice in his court. Do you really think that those who refused to pray at Moore’s opening convocations (which he held when he was a trial judge) would have gotten the same justice as those who fervently participated? Will Judge Moore treat non-Christians in divorce cases the same as Christians? He has already shown that he won’t. Putting up the monument is simply another way of saying that non-Judeo/Christians need not apply for justice here. And that is a serious violation of our liberties.

SLD

pug846

I normally read well written posts and don't respond. However, SLD, that's one of the best posts I've seen on these boards. <img src="graemlins/notworthy.gif" border="0" alt="[Not Worthy]" /> <img src="graemlins/notworthy.gif" border="0" alt="[Not Worthy]" />

fromtheright

SLD,

First of all, I apologize for taking so long to get back to you, FTR.

No problem. As pug noted, it's an excellent post. I'm afraid the time to respond will be directly proportional to my product.

I agree with you as to the difficulty of ascertaining original intent but that should not change the objective of seeking to divine it from the various sources. From that point, we should seek to fit that intent around modern circumstances. Your lumping of those who seek to follow original intent along with KKK nuts is offensive.


The point is, the debate over original intent is essentially meaningless – kind of like the debate over biblical literalism. People use the founders the way fundys cite God. Just like Christians love to pick and choose Bible quotes to support a variety of contradictory opinions, we can pick and choose founder’s quotes to support whatever Constitutional position we like.

That is why the search for that intent must be done carefully. Obviously both sides play the quote game, but the search for original intent should be done with mutual respect between opposing viewpoints, though I certainly understand that there are usually advocates representing opposing sides in a courtroom rather than the more detached forum of academia. Fortunately, constitutional lawyers do at least nominally ground much of their search in history.


We should not be bound by any one particular viewpoint on the Constitution, and even the framers would agree on that.

Agreed, but we should not seek ways to depart from that understanding either.


Madison himself refused to publish his notes on the convention because he didn’t believe that we should be guided by such in interpreting the Constitution.

Of course Madison's notes aren't the only source as to the meaning of the Constitution. Also, it seems easy to trot out Madison's insistence that we shouldn't lean too heavily on the Founders' intent but it was that intent that he relied on in his own debates on issues of the day. In the National Bank debate he fell back on his argument from the Federalist about the meaning of the general welfare clause at the opening of Article I, Section 8. What your argument does is to say that the Founders could rely on intent but that posterity was cast adrift. Jefferson's view on the "shelf life" of Constitutions (it was nineteen years as I recall) was obviously eccentric (Madison's response is further proof to me against the standard wisdom that Madison was Jefferson's protege'; Madison quite often went his own way and had his own ideas, quite often opposed to Jefferson's).


There is a principle of statutory construction which holds that the views of the principle sponsor of the legislation are entitled to the most respect, and then to other supporters of the bill. Madison was the primary sponsor of the Bill of Rights and is responsible for sheparding the bill through Congress.

I don't know that this construction would hold on a document more fundamental than simple statute. Another construction widely viewed as material is the accepted interpretations of the ratification conventions (admittedly, no easy task). As to Madison's sponsorship, though, he was late climbing aboard that train. As you know, he had argued against it in the ratification period, and had to agree to push for it to get elected to the House. Further, the amendments he suggested were a sifting of the proposals from the state conventions which were the birthplace of those amendments. There was also some calculus into the amendments he supported, as argued in Robert Goldwin's From Parchment to Power, that being his effort to avoid having any of the structure changed as some of the state-proposed amendments would have done.


Thus his views on it are entitled to more weight than others who simply voted in favor of it.

As you know, though, it wasn't a simple matter of an up or down vote on Madison's proposals, with the debates in the House and Senate and their committees. But, if you want to argue from Madisn's sponsorship, his version of the Establishment clause was "nor shall any national religion be established..."


As to incorporation, I am inclined against it, but continue to study it. One flaw in that, from a law review article I just read ("The Intellectual Origins of the Establishment Clause" by Noah Feldman--I'm sorry, I don't have the cite; BTW, I wish someone would do for Establishment Clause debate what the NRA has done in putting together a web page with various law review articles on both sides of the issue of gun control) is that, as you also mentioned, the Establishment Clause was an element of religious liberty and free exercise.


Do you really think that those who refused to pray at Moore’s opening convocations (which he held when he was a trial judge) would have gotten the same justice as those who fervently participated? Will Judge Moore treat non-Christians in divorce cases the same as Christians?

You tell me--would a smooth trial lawyer arguing for arbitration stand as good a chance with him as a Business Council attorney arguing against? That I don't know, but (1) his is only one vote on the Supreme Court and (2) I think it illegitimate to argue that it is improper for a judge to consider moral viewpoints, even informed by religious values, in his decisions. Do you think it improper for such an element to be considered?

Respectfully submitted,
Gene/fromtheright

[ December 03, 2002: Message edited by: fromtheright ]</p>

Living Dead Chipmunk

Cross-posted this unanswered question...

Fromtheright:
Have you read the 10 Commandments?

Do you know what the first four are?

If you answered "yes" to both of those questions, and yet you still can't see how a Taoist would be made to feel like a second-class citizen when the government endorses such a thing on the doorstep of their judicial branch... I'm really, seriously scared.

RufusAtticus

<a href="http://www.wnd.com/news/article.asp?ARTICLE_ID=29776" target="_blank">WingNutDaily: Moses and Judge Moore vs. Morris Dees by Pat Buchanan</a>

Hmm, what seems missing from this paper? How about any legal reason why Thompson's ruling is wrong? I doubt that Patty even read the ruling. This reminds me of Newdow v. US Congress. The conservatives can bluster in the media all they want, but until they can present a legal argument where the ruling errs, they have no legs to stand on.