Faith, Freedom, and Justice Sonia Sotomayor (Liberty Magazine)
By David A. Pendleton –
Ever since President Barack Obama nominated Sonia Sotomayor to the United States Supreme Court, the chattering classes have speculated endlessly regarding the impact she might have on the future of American jurisprudence. She would bring wide-ranging experiences to the Court: prosecutor, civil litigator, federal trial judge, federal appellate judge, law school instructor, and Hispanic woman. While not a Horatio Alger rags-to-riches success story, she comes pretty close.
As only the second Hispanic named to the Court, her views on race and ethnicity have naturally been of great interest to Court watchers, litigators, and the so-called fourth estate. In fact, for a time her “wise Latina” comments and the president’s equally controversial “empathy standard” were unwelcome distractions and fodder for sharp criticism. But the threatened firestorm turned out to be more a tempest in a teapot, and during the Senate confirmation hearings she conducted herself with aplomb, charm, and dignity, demonstrating not just a nuanced and sophisticated comprehension of the law but a judicial demeanor and temperament to be expected of one enrobed in the marble edifice at the entrance of which bears the inscription “Equal Justice Under Law.”
At the age of 55, she could potentially serve until 2044, should she serve as long as Justice Oliver Wendell Holmes, Jr. (who served on the Court until the age of 90). Her relative youth, then, is one of the positive considerations that no doubt influenced her nomination.
Perhaps of somewhat lesser public interest, but of no less public importance, are Sotomayor’s views regarding the Constitution’s provisions generally and the safeguards concerning religious liberty specifically. Appellate judges exercise discretion in interpreting the U.S. Constitution, but are necessarily constrained by the binding precedent set by the U.S. Supreme Court. Since 1803 the judiciary has had final legal interpretive authority within our nation¹s system of government and the Supreme Court has reigned supreme over all courts regarding the laws of the land. As Chief Justice Marshall opined in Marbury v. Madison: “It is emphatically the province and duty of the Judicial Department to say what the law is.”
Three provisions in the U.S. Constitution expressly reference religion, effectively presenting a triptych showcasing the New World’s commitment to freedom of conscience. One is in Article VI, Section 3 of the U.S. Constitution, which provides in pertinent part that “. . . no religious test shall ever be required as a qualification to any office or public trust under the United States.” While age and residency requirements may be prescribed for would-be officeholders, this “no religious test” clause clearly proscribes any religious criterion being applied. (In some jurisdictions in colonial America public office holders had to be of the Protestant faith.)
The other two religion provisions are situated in the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This pair of clauses (free exercise clause and establishment clause) proved fertile soil from which has grown the vast body of intricate, if not convoluted, case law concerning religious liberty.
While Sotomayor’s past judicial experience never afforded her the opportunity to opine on the Article VI, Section 3 prohibition against religious tests for officeholders, she has adjudicated cases pertaining to the other two provisions.
A quartet of cases gives voice to her views regarding the religion clauses. Ford v. McGinnis, for example, involved an inmate in a state correctional facility who requested to be served an Eid ul Fitr meal for observance of the Muslim Festival of Breaking the Fast. He wanted to participate in the daylong celebration at the conclusion of Ramadan, which is a holy month of fasting and prayer for Muslims. The prisoner had to be transferred from Rikers Island to the Downstate Correctional Facility for a court appearance on January 7, 2000, which was the very day for partaking of the Eid ul Fitr meal and so was unable to participate at the prescribed time.
Prison officials learned that most Muslims would not observe the feast at a time other than at the appointed time, and so they informed the inmate that no such makeup feast would take place given the generally accepted dictates of Islam. The prisoner in question begged to differ and filed a lawsuit.
The timing of the suit may not have been ideal for the litigant, who filed after the Religious Freedom Restoration Act had been invalidated by the Supreme Court (at least to the extent that it applied to the states) but before the Religious Land Use and Institutionalized Persons Act was passed by Congress. It afforded, however, the appellate court the occasion to decide the issue squarely on the Constitution, not on interpretations of federal statutes.
A federal trial court had affirmed the decision of the prison not to serve the meal at all since by conventional Muslim standards it would have been too late. By the time Sotomayor heard the case, she was a federal appellate judge serving on the Second Circuit. Writing for the panel, she opined that the appellate court would decline to assess the “objective reasonableness of the prisoner’s belief” and would ask rather the more focused and individualized questions of whether “a claimant sincerely holds a particular belief and whether the belief is religious in nature.”
This was because judges, though learned in the law, did not have the “aptitude to pass upon the question of whether particular religious beliefs are wrong or right.” The decision served a didactic purpose, signaling that courts would look to the sincerely held beliefs of the individual adherent party to the litigation, not solely to whether the belief was an official creed or a “tenet or dogma of an established religious sect.” No group would determine for the individual what the individual in question believed.
Not a favorite of correctional facility wardens, the case made clear that the Constitution’s guarantees afforded substantive rights, not easily dismissed, and certainly not diminished due to the idiosyncratic religious beliefs of the individual asserting the rights.
The case of Flamer v. City of White Plains was a suit by Rabbi Reuven Flamer, a Hasidic Lubavitcher Jew, who requested to erect a menorah, a nine-pronged candelabrum, in a city park. He was precluded from so doing by a city council resolution, supported by Reform Jews, prohibiting fixed outdoor displays of religious or political symbols in government parks. The rabbi asserted his constitutional rights to free exercise of religion and to free speech and argued that the city resolution was unconstitutional.
Sotomayor, then serving as a federal trial judge, struck down the resolution as an unconstitutional content-based regulation of speech. A hybrid case involving two First Amendment protections (speech and religion), Flamer is seen as a victory for proponents of unfettered religious speech. Why should religious speech be accorded less protection than secular speech? After all, freedom of religion is expressly protected and, therefore, religious speech should for that very reason be accorded more, rather than less, protection.
At the same time, however, there are those of a sincerely religious orientation who equally revere the Constitution who are less than completely comfortable with the decision. For them, the Constitution precludes use of government property for such religious expression. The establishment clause is not just about disestablishing churches but about preventing the perception of government endorsement of a particular faith. The case is not just a skirmish between conservative Hasidic Lubavitcher Jews and progressive Reform Jews; it also reveals the inherent tensions between the establishment clause and free exercise clause.
Judge Sotomayor, with the deft hand of a judicial maven, identified the relevant facts and applied the legal precedent. After describing the distinctions between a traditional public forum, a nonpublic forum, and a designated public forum, she permitted the expressive action of erecting the menorah, vindicating the right to religious speech in a forum in which no one would mistake the menorah for government speech. No doubt the case would have been decided the same way whether the display entailed the Ten Commandments, a crescent, or a crèche.
Campos v. Coughlin is a third case that can serve as a window on Sotomayor¹s approach to religious freedom issues. Campos also involved incarcerated individuals, self-described adherents of the Santeria religion, though some had previously identified themselves as Christians. What makes this case interesting was not just that the believers were prisoners or that they insisted that they had a right to wear multiple strands of beads; it is important because while such a devotional practice may have been officially optional for Santeria practitioners, it was not optional to the petitioners in question. If the state denied their request for accommodation, the denial could, in their minds, “result in negative and possibly irreversible life consequences for the practitioner.”
In deciding the case Judge Sotomayor upheld their claim, holding that an accommodation was constitutionally required. State corrections administrators, while ever mindful of prison safety and security concerns, were no less responsible as government actors for complying with the constitutional right to the free exercise of religion. The right is not absolute and admits of caveats, qualifications, and limitations. But on balance the religious freedoms guaranteed to the prisoners outweighed concerns that the beads might identify prison gang membership (a genuine, nontrivial concern of the warden).
Hankins v. Lyght was a case in which an elderly Protestant minister filed suit against his denomination’s implementation of mandatory age-based retirement. Though he loved his church, he hated what in his mind was its thinly veiled ageism. In this case Judge Sotomayor parted company with the majority and filed a dissent.
She argued that the federal age discrimination in employment statute was inapplicable to a church’s hiring, retention, and employment practices, for to hold otherwise would unduly intrude into matters (of faith) regarding which courts had no competence. Court involvement in a church¹s mandatory retirement dispute would be to trespass on “spiritually intimate grounds of a religious community’s existence.”
With due deference to applicable precedent, she explained her reasons for dissenting. One might infer from her dissenting opinion a profound respect for religious institutions and their faith-informed internal operations. The right to believe belongs not just to an individual but to an aggregate of individuals, and government should studiously avoid becoming embroiled in internecine struggles over religious questions between believers and their communities.
These four cases stand for the constancy of the Constitution. They reveal Sotomayor’s judicial leitmotif of upholding constitutional rights not just in trouble-free circumstances but even under challenging conditions. The Constitution guides the ship of state not just in tranquil waters but even, and perhaps especially, in the Sturm und Drang of the perfect legal storm.
While it might be an exaggeration to call her opinions illuminating, learned, and lucid, it’s not much of an exaggeration. Her published opinions exhibit the painstaking and proficient habits of a judge who is fairly even-tempered, passionate about being dispassionate, and decidedly mainstream. She is not, at least on the religion clauses, an ideologue with a doctrinal ax to grind. Her opinions avoid courting the avant-garde; instead, they are closely reasoned and meticulously written with the fidelity to statutes and studious attention to precedent expected of a neutral adjudicator. Noncontroversial is an apt description of her judicial oeuvre‹and perhaps this is precisely what the president wanted.
These are not the only opinions that evince recently confirmed Justice Sotomayor’s religious liberty jurisprudence. Professor Howard M. Friedman has compiled an extensive list of Sotomayor’s rulings on religion clause issues at his blog, Religion Clause.
Some groups criticize Sotomayor’s jurisprudence as being merely comme ci, comme ça (so-so) or rather moderately tolerable. Others find her to be―for good or for ill―a rather “strict church-state separationist.” Still others laud her as a brilliant jurist.
According to the Baptist Joint Committee for Religious Liberty, an organization noted for its strict church-state separation, Sotomayor upholds religious “free exercise―even in difficult settings such as prisons and in cases where the religious practices of plaintiffs are unfamiliar,” and “where the governing case law was not settled, she accurately predicted the Supreme Court’s eventual resolution.”
Dan Gilgoff, writing in his God & Country blog for U.S. News and World Report, found Sotomayor’s religion clause cases so middle-of-the-road that he predicted the White House might even focus on them to garner support among religious conservatives.
The American Center for Law and Justice, a traditional values counterpart to the liberal ACLU, doubtless would have preferred a nominee more in the conservative mold of Justice Scalia. But its decision not to actively oppose Sotomayor’s confirmation and to rather generically indicate that it “stands firmly behind the appointment of judges who will interpret the law, rather than legislate policy” is telling.
While the U.S. Senate fully inquired into Sotomayor’s judicial philosophy, one thing it properly declined to do was inquire into “her own religious faith.” While it is common knowledge that she is a practicing Catholic Christian (and will constitute the sixth Catholic on the nine-member Court), her prayers, devotional practices, and personal theology are not pertinent to her qualifications for the U.S. Supreme Court. Such a line of questioning could be tantamount to a violation of the “no religious test” provision of the Constitution.
In conclusion, if Justice Sotomayor’s past writings are any indication, her future religion clause opinions should please First Amendment advocates, especially those for whom religious liberty is vital.
David A. Pendleton, a former legislator, adjudicates workers compensation appeals in Honolulu, Hawaii.
Although ReligiousLiberty.TV is not affiliated with Liberty Magazine, we strongly support the magazine and are pleased that the magazine and the author have granted us permission to repost this informative article about the views of the newest Justice on the United States Supreme Court on the intersection of church and state. If you enjoy this article, please consider subscribing (it is only $7.95 a year) or contributing to further the mission of the magazine. RLTV Editor
Why America should not be declared a “Christian Nation”
What would it mean if the United States were officially declared a “Christian Nation”? How would it affect you in your everyday life? Would you have increased opportunity to practice your faith more freely? Would the government use its power to make moral laws that line up with your Christian beliefs or would it favor the ‘Christian beliefs’ of your neighbors?
Our best example might come from a time when much of Europe was a “Christian Continent.” The Holy Roman Empire lasted from Emperor Otto’s coronation in 962 to 1806 when it was dissolved during the Napoleonic wars. For all intents and purposes it was considered the ultimate “Christian” political system.
The Empire was afraid what would happen if people began to compare the activities of its political and religious leaders with the Bible. There was tremendous power in the idea that a political leader could advance policies, not through debate, but by virtue that “God wants it this way, and if you disagree you are in opposition to God.” To put this in perspective, imagine that President Obama could win the healthcare debate by simply saying that “God wants it this way, and if you disagree you are in opposition to God.”
Around 1419, John Huss began to speak against some of the customs of the Church, and because the Empire and the Church were so closely aligned, they spent a lot of energy trying to silence the “heresy.” The Empire was threatened because if Huss won the debate, he would show that the Church could be challenged and if the Church could be challenged, then it threatened the Empire itself, which based its power on the idea that God considered the Empire to be correct on all issues.
When people heard what Huss was saying, they began to doubt their old idea of a unified corpus Christianum and consider that people did not have to agree on everything when it came to faith. A century later, in 1517, Martin Luther initiated the Reformation in an attempt to bring the Church around to his ideas. People ended up siding with Luther or against him along geographic lines and Germany was split along these lines from which it never fully recovered until the Empire dissolved.
Added to this was the fact that popes and emperors tended to distrust each other, and felt that they had to fight to remain in control of the situation.
Many people believe that the Establishment Clause of the First Amendment to the U.S. Constitution prevents the formation of a “state church” such as the Church of England. While there are good reasons to believe that this was intended to be much broader, let’s assume for the sake of argument that Congress would still be free to declare that Christianity is the official religion of the country and that our laws were supposed to mirror God’s law.
Christianity has struggled with issues of power and control since its inception. Throughout Jesus’ ministry, His disciples often asked Jesus, “Who is the greatest among us?”
They probably thought that Jesus would name John or Peter or Mathew and make this honored disciple a Vice President of the Kingdom. But Jesus turned their question upside down.
In Matthew 18 we read His answer. “Jesus called a little child and had him stand among them. And he said, ‘I tell you the truth, unless you change and become like little children, you will never enter the kingdom of heaven. Therefore, whoever humbles himself like this child is the greatest in the kingdom of Heaven” (NIV).
In recent months as I’ve read various calls for America to be declared a Christian nation, I’ve been surprised at some of the language used. Tom Snyder on World Net Daily said that the idea of separation of church and state is promoted by “theophobic atheists, neo-pagan fascists, radical liberals, socialists, Marxists, anti-Christian bigots, sexual perverts, Christophobic politicians and journalists, and other such people who wish to obliterate the European Christian foundation on which America was built.” See http://www.wnd.com/news/article.asp?ARTICLE_ID=45069
Snyder concludes that, “separation of church and state does not mean separation between politics and religion or politics and the Bible. As Gary DeMar points out, there is a big difference between an ‘ecclesiocracy’ where the church rules society through religious leaders with preachers and priests as the government officials, and a ‘theocracy’ where God rules the outward behavior of all people through the civil government chosen by the people. Thus, the Founding Fathers did indeed establish a Christian theocracy, but they did not establish a Christian ecclesiocracy.”
But who will tell us how God would rule the “outward behavior of all people”? Would some people claim to be closer to God and that they could tell everybody else how to live out their faith in their everyday lives?
History tells us that it would not be a debate between Christians and atheists. If Christianity won predominance over every other religious system in the nation, it would be a debate between Baptists, Episcopalians, Methodists, Lutherans, Catholics, Seventh-day Adventists, Pentacostals, and any other denomination you could name. Then it would be between the liberals and conservatives, and ultimately between conservatives or between liberals, the powerful – not the faithful – would control.
People interpret faith differently, and while most people think they believe the right thing, history tells us what to predict what would happen if one person’s right thing and the other person’s right thing were in disagreement. Anybody who has served on a church board can tell you how much debate goes on about the smallest issues – churches have split over the color of carpet, whether somebody could play a guitar in church, or whether a woman can make an announcement in front. Even the Protestants in Europe during the Reformation went to war and killed each other over whether the Eucharist was really the body and blood of Christ.
If America were declared a Christian nation, would this tendency to fight over the smallest differences in faith change? Would churches that uphold traditional marriage gain power over those who performed same-sex marriages? Would those who view national healthcare as a Godly objective fight with those who found problems with it? Would the liberal churches or conservative churches dominate the landscape?
And what about those who were not Christian? Would they find themselves pressured to convert or face losing their rights to hold office, vote, or even own property?
Looking at history, the only way the idea of a “Christian America” that is envisioned would ever be able to “succeed” is by seeking power, suppressing dissent, and persecuting those who disagreed. It might not follow a particular denomination, but because Christianity itself is so diverse there would need to be a central core of beliefs. There might be a few “true believers” who would carry their message forward without feeling upset by this change, but the majority of the people, including most Christians, would live in constant fear and frustration.
In an age when many Christian conservatives argue that the government cannot properly handle the issue of health care, many of the same people seem to have confidence in the government’s ability to handle matters of faith. For that reason alone, separation of church and state should be a conservative cause. Religion does best when it stands on its own two feet and does not rely on the crutch of government. Just as conservatives argue those who receive a lifetime of government funding cannot handle the open market, they should recognize that once churches depend on government “marketing” they will cease to be as productive.
After a thousand years of religious leadership, the former Holy Roman Empire is now one of the most secular places on the globe. People look at churches as irrelevant antiques. And many government-funded churches in Europe are dying on the vine. This was because religion depended on the government and when the government pulled back, religion folded. If Americans want faith to thrive, it should grow on its own – not be stifled or forced by government. Faith does not need a government handout or increased bureaucratic overhead that would inevitably result. Imagine if churches were run like the DMV!
This is not to say that there aren’t times when churches, synagogues, mosques, and other religious organizations can’t partner with government for humanitarian purposes, but rather that the government should stay out of matters of faith and doctrine.
Rather than seeking power in order to turn the United States into a Christian Empire, it would be better for individual Christians and churches to follow Jesus’ words, “Whoever humbles himself like this child is the greatest in the kingdom of Heaven” (NIV). The best way to grow Christianity is not through achieving power but through caring acts of kindness and mercy. Evangelical Christians should not seek to become a Christian nation, but they can seek to be a nation of Christians who have been attracted to Christ through their faith and freely chosen to follow Him. If Christians must rely on the power of government to increase their impact on the world, they are doing something very wrong.
Declaring that this is a “Christian Nation” would not make America better – it would make America a nation of robots and would misrepresent the freedom that faith can bring. America should be a nation where people can choose their own faith and not have to be afraid that they will be marginalized or at a disadvantage when it comes to how their government treats them. America is a big place, and is definitely big enough for all peaceful people of faith as well as those who choose not to follow any faith. That’s what freedom of religion is all about.
Doug Kmiec on a Court Packed with Catholics (Wall Street Journal)
If Judge Sonia Sotomayor is confirmed by the United States Senate, she will be the 6th Catholic among the 9 United States Supreme Court justices. Doug Kmiec, my constitutional law professor in the area of the Bill of Rights at Pepperdine University, discusses what this will mean in a recent interview with Suzanne Sataline of the Wall Street Journal . Kmiec is a former White House adviser under both President Reagan and the first President Bush and a devout Roman Catholic. Michael Peabody, Editor RLTV
EXCERPT:
Hi Professor Kmeic. So what will be the impact of having Catholics comprise two-thirds of the justices on the Supreme Court?
The Catholic understanding is that the nature of the office has to be respected and the judicial office . . . should not be a policy making position and the church does not assume it is . . . . It would be an entirely improper criticism for any churchman to make of Judge Sotomayor that she needs to rule in a way that is dictated by the faith. She is to follow the law as it is given to her and that is the oath she takes.
…
In what sorts of cases can we see those beliefs in action?
[Kmiec said he’s read about 50 or 100 of her rulings, perhaps a quarter of her authored opinions.] She does seem to be particularly sensitive to freedom of religion issues. She protected inmates in prison, for instance, who asked to have their faith traditions accommodated.
Read the full article at http://blogs.wsj.com/law/2009/05/27/doug-kmiec-on-a-court-packed-with-catholics/
EXCERPTS: Douglas Laycock on dangers of protecting liberty ‘only for ourselves’ (Baptist Joint Committee)
From: http://bjconline.org/news/news/0209laycock.htm
Douglas Laycock is the Yale Kamisar Collegiate Professor of Law at the University of Michigan Law School. He is one of the nation’s leading authorities on religious liberty law. He made these remarks on January 15 in accepting the National First Freedom Award from the Richmond, Va.,-based First Freedom Center.
EXCERPTS:
If I am remembered for anything after my career is over, I hope it will be that I avoided the Puritan mistake, and that I warned others against it. The Puritans came to Massachusetts for religious liberty, but they meant religious liberty only for themselves. Everyone else had the liberty to go anywhere in the world outside Massachusetts, and in the Puritan view, that was quite enough liberty for the likes of them.
We are not so transparent today about protecting liberty only for ourselves. We do not criminalize belief or expel dissenters from the jurisdiction. But most Americans still care far more about liberty for themselves than about liberty for those they disagree with. And this unfortunate bias is especially pronounced with respect to religious liberty.
…
For too many Americans, their view of religious liberty is driven by their view of religion. For some Americans, religion is a good thing, the most important and transcendent of all things, so religious liberty should be protected and religious observance should be promoted. For other Americans, religion is a bad thing, a source of repression and social conflict and even violence, so religion should be carefully contained and the rights of nonbelievers should be vigorously protected. Whether or not they put it so bluntly, many Americans resolve all debatable religious liberty questions either in favor of promoting religion or in favor of constraining religion. And some questions that really aren’t debatable – they resolve some of those in the same biased way.
…
Religious liberty is for everyone — for believers and nonbelievers of every stripe. If my career stands for anything, I hope it stands for that. The value of religious liberty is not religion, and the value of religious liberty is not secularism. The value of religious liberty is liberty — liberty with respect to choices and commitments that are of profound importance to many humans, and usually of much less importance to the state.
Read the full speech at http://bjconline.org/news/news/0209laycock.htm
Documentary: The End of America by Naomi Wolf
In a stunning indictment of sweeping policy changes during the Bush years, best-selling author Naomi Wolf (The Beauty Myth) makes a chilling case that American democracy is under threat. Investigating parallels between our current situation and the rise of dictators and fascism in once-free societies, Wolf uncovers a number of deeply unsettling similarities-from the use of paramilitary groups and secret prisons to the targeted suspension of the rule of law. With this galvanizing call to arms based on her recent book, she urges regular citizens to take back our legacy of freedom and justice.
Note: RLTV presents materials from a variety of perspectives. This film appears for informational purposes only and does not indicate an endorsement of ideas presented.
VIDEO: California Supreme Court Oral Arguments on Prop 8
Video includes historical background on the court – to watch video of the March 5 advance to approximately 18 minutes and 46 seconds.
Strauss et al. v. Horton (Hollingsworth et al., Interveners)
(and two other cases, S168066 Tyler et al. v. State of California et al.
(Hollingsworth et al., Interveners) and S168078 City and County of
San Francisco et al. v. Horton (Hollingsworth et al., Interveners))
The court issued an order to show cause in Strauss, Tyler, and City and County of San Francisco directing the parties to brief and argue the following issues: (1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (See Cal. Const., art. XVIII, §§ 1–4.) (2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution? (3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?
For more case materials including the many amicus briefs and actual court filings, visit the California Supreme Court website at http://www.courtinfo.ca.gov/courts/supreme/highprofile/prop8.htm
For more
VIDEO: Christian Perspectives on Legal Thought
A panel from the 2007 J. Reuben Clark Law Society Conference featuring: Robert F. Cochran, Jr., Louis D. Brandeis Professor of Law, Pepperdine University School of Law; W. Cole Durham, Gates University Professor of Law, Director, BYU International Center for Law and Religion Studies, J. Reuben Clark Law School at BYU; and Elizabeth Sewell, Associate Director, BYU International Center for Law and Religion Studies, J. Reuben Clark Law School at BYU.
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BIOS
Illinois law requiring moment of silence in public schools ruled unconstitutional
CHICAGO – Today, Judge Robert W. Gettleman of the federal U.S. District Court in Chicago ruled that a state law mandating a moment of silence in Illinois public schools is an unconstitutional endorsement of religion. He had previously put the Illinois Silent Reflection and Student Prayer Act on hold while he considered the case filed by an atheist parent on behalf of his daughter.
The Illinois General Assembly had passed the law to allow students the choice to simply reflect on the day’s activities or pray, and proponents argued that this did not compel religious practice. However, the court found that the intent of the law was to encourage organized prayer in schools, and pointed to arguments made on the Assembly floor equating the moment of silence with legislative prayers. The court also found that the law favored religions that practice silent prayer over those who do not.
“Students remain free to pray on their own, in a non-disruptive manner, throughout the school day,” ACLU lawyer Adam Schwartz said in a statement. “As Judge Gettleman recognized in his decision, public school students in Illinois do not require the permission of the General Assembly to engage in this constitutionally protected activity. ”
The court upheld the principle that students have a constitutional right to pray on their own at any time and that the government or the schools should not arbitrate when and how students pray.
RITSEMA: Supreme Court deals death blow to the 4th Amendment (Civics News)
Scott Ritsema
CIVICS NEWS.com
January 15, 2008
The “conservatives” on the Supreme Court have again voted in favor of big government and against liberty. They have ruled against the Fourth Amendment and in favor of the police state. (See AP report and USA Today report, “Supreme Court OKs Use of Evidence from Illegal Search.”)
For years, the courts have rightly refused to convict somebody based upon evidence that was obtained through an illegal, unconstitutional search. A legal search obeys the Fourth Amendment, which requires the search to be based upon probable cause and backed up by a warrant. The courts have gotten this one right over the years, refusing to accept evidence in court that failed to meet the criteria for a legitimate search. This way, law enforcement had an incentive to obey the Constitution, and do proper searches, rather than illegal searches.
But no more. The Fourth Amendment has been effectively repealed. Now, any the time that law enforcement makes a “mistake” that prevents them from doing a proper search, they will get away with it, and the evidence can be admitted into the court proceedings. The incentive to do the search in a legal fashion has now been removed; instead, and an incentive to do illegal searches and then say “oops” has now been introduced.
What is particularly astounding is that the reasoning of the majority had nothing to do with fidelity to the Constitution. As USA Today reports, “The Roberts majority focused on the societal costs of excluding drugs and other evidence seized.” Where did the Supreme Court derive the authority to rule based upon the perceived social costs and benefits of their decision? Aren’t these judges? …And aren’t judges supposed to interpret the law and rule based upon the Constitution? Or are they legislators now?
Conservatives rightly gripe about liberals who legislate from the bench. But they need to look in the mirror: “conservatives” have just legislated from the bench, and in doing so, have giving another tool to the police state. They have made it that much easier for the state to act in a lawless manner, further stripping the people of their individual liberties.
Roosevelt’s or Reagan’s America? A Time for Choosing
John Marini, a professor of political science at the University of Nevada, Reno, is a graduate of San Jose State University and earned his Ph.D. in government at the Claremont Graduate School. He has also taught at Agnes Scott College, Ohio University and the University of Dallas. He is on the board of directors of the Claremont Institute for the Study of Statesmanship and Political Philosophy and a member of the Nevada Advisory Committee of the U.S. Civil Rights Commission. Dr. Marini is the author or co-author of several books, including The Progressive Revolution in Politics and Political Science; The Politics of Budget Control: Congress, the Presidency, and the Growth of the Administrative State; and The Founders on Citizenship and Immigration.
The following is adapted from a speech delivered at Hillsdale College on January 29, 2007, during a seminar on the topic, “America’s Entitlement Society,” co-sponsored by the Center for Constructive Alternatives and the Ludwig von Mises Lecture Series.
On January 11, 1944, President Franklin D. Roosevelt sent the text of his Annual Message to Congress. Under normal conditions, he would have delivered the message in person that evening at the Capitol. But he was recovering from the flu, and his doctor advised him not to leave the White House. So he delivered it as a fireside chat to the American people. It has been called the greatest speech of the century by Cass Sunstein, a prominent liberal law professor at the University of Chicago. It is an important speech because it is probably the most far-reaching attempt by an American president to legitimize the administrative or welfare state, based on the idea that government must guarantee social and economic security for all.
Thirty-seven years later, in his First Inaugural Address on January 20, 1981, President Ronald Reagan would deny that government could provide such a broad guarantee of security in a manner consistent with the protection of American liberty. Indeed, he would insist that bureaucratic government had become a danger to the survival of our freedom. In looking at the differences between the views of Roosevelt and Reagan, we can discern the distinction between a constitutional regime—in which the power of government is limited so as to enable the people to rule—and an administrative state, which presupposes the rule of a bureaucratic or intellectual elite.
FDR’s New Bill of Rights
When Roosevelt spoke to the nation that January night, he was looking beyond the end of World War II. In recent years, he said,
Americans have joined with like-minded people in order to defend ourselves in a world that has been gravely threatened with gangster rule. But I do not think that any of us Americans can be content with mere survival. Sacrifices that we and our Allies are making impose upon us all a sacred obligation to see to it that out of this war we and our children will gain something better than mere survival.
And what was this “sacred obligation?” Roosevelt continued:
The one supreme objective for the future, which we discussed for each nation individually, and for all the United Nations, can be summed up in one word: Security. And that means not only physical security which provides safety from attacks by aggressors. It means also economic security, social security, moral security—in a family of Nations.
Government has a sacred duty, in other words, to provide security as a fundamental human right.
Roosevelt was well aware that this was a departure from the traditional understanding of the role of American government:
This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable political rights—among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures. They were our rights to life and liberty. As our Nation has grown in size and stature, however—as our industrial economy expanded—these political rights proved inadequate to assure us equality in the pursuit of happiness. We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. “Necessitous men are not free men.” People who are hungry and out of a job are the stuff of which dictatorships are made. In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all…
Among these new rights, Roosevelt said, are “The right to a useful and remunerative job in the industries, or shops or farms or mines of the Nation; The right to earn enough to provide adequate food and clothing and recreation; The right of every farmer to raise and sell his products at a return which will give him and his family a decent living; The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad; The right of every family to a decent home; The right to adequate medical care and the opportunity to achieve and enjoy good health; The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment; The right to a good education.”
The Constitution had established a limited government which presupposed an autonomous civil society and a free economy. But such freedom had led inevitably to social inequality, which in Roosevelt’s view had made Americans insecure in a way that was unacceptable. He had lost faith in the older constitutional principle of limited government. Rather, he thought that the protection of political rights—or of social and economic liberty, exercised by individuals unregulated by government—had made it impossible to establish a foundation for social justice, i.e., what he called “equality in the pursuit of happiness.” He assumed that a fundamental tension exists between equality and liberty that can only be resolved by a powerful, even unlimited, administrative or welfare state.
Rejecting the Founders
The American founders, by contrast, thought that equality and liberty were perfectly compatible—indeed, that they were opposite sides of the same coin. The principle of natural equality had been set forth in the Declaration of Independence, which clearly spelled out the way in which all human beings are the same: They are equally endowed with natural and inalienable rights. But along with this similarity, the Founders knew that differences are sown into human nature: some people are smarter, some are stronger, some are more beautiful, some are musically inclined while others have a predilection for business, etc. Political equality, which requires the protection of individual rights, produces social inequality (or unequal achievement) precisely because of these unequal natural faculties. The preservation of freedom, therefore, in the Founders’ view, requires a defense of private property, understood in terms of the protection of the individual citizen’s rights of conscience, opinion, self-interest and labor. They thought that a constitutional order, by separating church and state, government and civil society, and the public and private sphere, makes it possible to reconcile equality and liberty in a reasonable way that is compatible with the nature of man. Thus the Constitution limits the power of government to the protection of natural rights.
Roosevelt and his fellow progressives rejected the idea of natural differences between men, insisting that those differences arise only out of social and economic inequality. As a result, they redefined the idea of freedom, divorcing it from the idea of individual rights and identifying it instead with the idea of security. It was in the cause of this new understanding of freedom that America’s constitutional form of limited government was gradually replaced—beginning with the New Deal and culminating in the late 1960s and 1970s—by an administrative or welfare state.
Roosevelt had made it clear, even before he was elected president, that government had a new and different role to play in American life than that assigned to it by the Constitution. In an October 1932 radio address, he stated: “…I have…described the spirit of my program as a ‘new deal,’ which is plain English for a changed concept of the duty and responsibility of Government toward economic life.” In his view, selfish behavior on the part of individuals and corporations must give way to rational social action informed by a benevolent government and the organized intelligence of the bureaucracy. Consequently, the role of government was no longer the protection of the natural or political rights of individuals. The old constitutional distinction between government and society—or between the public and private spheres—as the ground of liberalism and a bulwark against political tyranny had created, in Roosevelt’s view, economic tyranny. To solve this, government itself would become a tool of benevolence working on behalf of the people.
This redefinition of the role of government carried with it a new understanding of the role of the American people. In Roosevelt’s Commonwealth Club address of 1932, he said:
The Declaration of Independence discusses the problem of government in terms of a contract…Under such a contract, rulers were accorded power, and the people consented to that power on consideration that they be accorded certain rights. The task of statesmanship has always been the redefinition of these rights in terms of a changing and growing social order. New conditions impose new requirements upon government and those who conduct government.
But this idea of a compact between government and the people is contrary to both the Declaration of Independence and the Constitution. Indeed, what links the Declaration and the Constitution is the idea of the people as autonomous and sovereign, and government as the people’s creation and servant. Jefferson, in the Declaration, clearly presented the relationship in this way: “to secure these [inalienable] rights, governments are instituted among men, deriving their just powers from the consent of the governed…” Similarly, the Constitution begins by institutionalizing the authority of the people: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
In Roosevelt’s reinterpretation, on the other hand, government determines the conditions of social compact, thereby diminishing not only the authority of the Constitution but undermining the effective sovereignty of the people.
Reagan’s Attempt to Turn the Tide
Ronald Reagan addressed this problem of sovereignty at some length in his First Inaugural, in which he observed famously: “In this present crisis, government is not the solution to our problem, government is the problem.” He was speaking specifically of the deep economic ills that plagued the nation at the time of his election. But he was also speaking about the growing power of a bureaucratic and intellectual elite. This elite, he argued, was undermining the capacity of the people to control what had become, in effect, an unelected government. Thus it was undermining self-government itself.
The perceived failure of the U.S. economy during the Great Depression had provided the occasion for expanding the role of the federal government in administering the private sector. Reagan insisted in 1981 that government had proved itself incapable of solving the problems of the economy or of society. As for the relationship between the people and the government, Reagan did not view it, as Roosevelt had, in terms of the people consenting to the government on the condition that government grant them certain rights. Rather, he insisted:
We are a nation that has a government—not the other way around. And this makes us special among the nations of the Earth. Our government has no power except that granted it by the people. It is time to check and reverse the growth of government, which shows signs of having grown beyond the consent of the governed.
In Reagan’s view it was the individual, not government, who was to be credited with producing the things of greatest value in America:
If we look to the answer as to why for so many years we achieved so much, prospered as no other people on Earth, it was because here in this land we unleashed the energy and individual genius of man to a greater extent than has ever been done before. Freedom and the dignity of the individual have been more available and assured here than in any other place on Earth.
And it was the lack of trust in the people which posed the greatest danger to freedom:
…we’ve been tempted to believe that society has become too complex to be managed by self-rule, that government by an elite group is superior to government for, by, and of the people. Well, if no one among us is capable of governing himself, then who among us has the capacity to govern someone else?
Reagan had been long convinced that the continued growth of the bureaucratic state could lead to the loss of freedom. In his famous 1964 speech, “A Time for Choosing,” delivered on behalf of Barry Goldwater, he had said:
…it doesn’t require expropriation or confiscation of private property or business to impose socialism on a people. What does it mean whether you hold the deed or the title to your business or property if the government holds the power of life and death over that business or property? Such machinery already exists. The government can find some charge to bring against any concern it chooses to prosecute. Every businessman has his own tale of harassment. Somewhere a perversion has taken place. Our natural, inalienable rights are now considered to be a dispensation of government, and freedom has never been so fragile, so close to slipping from our grasp as it is at this moment.
Reagan made it clear that centralized control of the economy and society by the federal government could not be accomplished without undermining individual rights and establishing coercive and despotic control.
…“the full power of centralized government” was the very thing the Founding Fathers sought to minimize. They knew that governments don’t control things. A government can’t control the economy without controlling people. And they knew when a government sets out to do that, it must use force and coercion to achieve its purpose. They also knew, those Founding Fathers, that outside of its legitimate functions, government does nothing as well or as economically as the private sector of the economy.
Over the next 15 years, Reagan succeeded in mobilizing a powerful sentiment against the excesses of big government. In doing so, he revived the debate over the importance of limited government for the preservation of a free society. And his theme would remain constant throughout his presidency. In his final State of the Union message, Reagan proclaimed “that the most exciting revolution ever known to humankind began with three simple words: ‘We the People,’ the revolutionary notion that the people grant government its rights, and not the other way around.” And in his Farewell Address to the nation, he said: “Ours was the first revolution in the history of mankind that truly reversed the course of government, and with three little words: ‘We the People.’” He never wavered in his insistence that modern government had become a problem, primarily because it sought to replace the people as central to the American constitutional order.
Like the Founders, Reagan understood human nature to be unchanging—and thus tyranny, like selfishness, to be a problem coeval with human life. Experience had taught the Founders to regard those who govern with the same degree of suspicion as those who are governed—equally subject to selfish or tyrannical opinions, passions, and interests. Consequently, they did not attempt to mandate the good society or social justice by legislation, because they doubted that it was humanly possible to do so. Rather they attempted to create a free society, in which the people themselves could determine the conditions necessary for the good life. By establishing a constitutional government of limited power, they placed their trust in the people.
Up or Down, Not Right or Left
The political debate in America today is often portrayed as being between progressives (or the political left) and reactionaries (or the political right), the former working for change on behalf of a glorious future and the latter resisting that change. Reagan denied these labels because they are based on the idea that human nature can be transformed such that government can bring about a perfect society. In his 1964 speech, he noted:
You and I are told increasingly that we have to choose between a left or right. Well I would like to suggest that there is no such thing as a left or right. There is only an up or down—up to man’s age-old dream, the ultimate in individual freedom consistent with law and order, or down to the ant heap of totalitarianism. And regardless of their sincerity, their humanitarian motives, those who would trade our freedom for security have embarked on this downward course.
In light of the differences between the ideas and policies of Roosevelt and Reagan, it is not surprising that political debates today are so bitter. Indeed, they resemble the religious quarrels that once convulsed western society. The progressive defenders of the bureaucratic state see government as the source of benevolence, the moral embodiment of the collective desire to bring about social justice as a practical reality. They believe that only mean-spirited reactionaries can object to a government whose purpose is to bring about this good end. Defenders of the older constitutionalism, meanwhile, see the bureaucratic state as increasingly tyrannical and destructive of inalienable rights.
Ironically, the American regime was the first to solve the problem of religion in politics. Religion, too, had sought to establish the just or good society—the city of God—upon earth. But as the Founders knew, this attempt had simply led to various forms of clerical tyranny. Under the American Constitution, individuals would have religious liberty but churches would not have the power to enforce their claims on behalf of the good life. Today, with the replacement of limited government constitutionalism by an administrative state, we see the emergence of a new form of elite, seeking to establish a new form of perfect justice. But as the Founders and Reagan understood, in the absence of angels governing men, or men becoming angels, limited government remains the most reasonable and just form of human government.
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Editor, Douglas A. Jeffrey; Deputy Editor, Timothy W. Caspar; Assistant to the Editor, Patricia A. DuBois.
Reprinted by permission from Imprimis, the national speech digest of Hillsdale College, www.hillsdale.edu.” Subscription free upon request. ISS N 0277-8432. Imprimis trademark registered in U.S. Patent and Trade Office #1563325.