Saturday, June 19, 2004

A Point about Federalism

Marci Hamilton has an interesting essay at FindLaw on why the Supreme Court's recent ruling in Newdow raises Federalism issues:

The Supreme Court Decision on the Pledge of Allegiance Case

Although my position re the Pledge itself differs from Hamilton's, I find the essay quite perceptive on the problems of the opinions rendered by the Court. One point on which I disagree is her over-quick dismissal of Justice Thomas's originalist argument limiting the non-establishment clause to the federal government. Her reason, that it is inconsistent with the historical evidence, is far more dubious and controversial than she makes out. Whatever Madison's original intention may have been, there seems no doubt that the clause was not originally interpreted as applying to the states - in part for the obvious reason that the easiest reading of the First Amendment protections makes them protections from Congress. As I recall at least two states (Mass. and Virg.) continued to have established churches for quite a long time after the ratification of the Constitution. The established churches broke down on their own after a while, without any interference, because people realized that the benefits of establishment were illusory: the only thing churches gained was a steady inflow of tax dollars, while the state gained the power to determine how pastors were chosen. I am far from claiming that Thomas's position covers all the evidence; but Hamilton should be less facile in her handling of the evidence on this point, and recognize, even if she ultimately disagrees, that Thomas's position is not without its own rooting in the historical evidence.

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