Notes From Babel

Waxing Indignant about the Unwritten Constitution

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Liberal constitutional law scholar Erwin Chemerinsky waxes indignant at the Obama Administration’s brief filed in support of an Arizona law giving tax credits for contributions to student tuition organizations.  Apparently, the law apparently in some tax dollars going to parochial schools.  Chemerinsky apparently agrees with the Ninth Circuit that Arizona’s law violates the First Amendment, which provides that “Congress shall make no law respecting an establishment of religion.”

Anyone familiar with First Amendment jurisprudence will probably think me pedantic for saying so, but someone like Dean Chemerinsky should know better than to suggest this is a violation of the Establishment Clause.  No one will ever contend that Arizona’s law is an act of “Congress . . . respecting an establishment of religion.”  Instead, as you probably know, what Dean Chemerinsky means to suggest is this is a violation of the Fourteenth Amendment’s proscription that “nor shall any state deprive any person of life, liberty, or property, without due process of law.”

Then again, after reading this, any person not inducted into the cult of living constitutionalism might still ask, how does this have anything to do with an Arizona law giving tax credits for donations to student tuition organizations?  The short story is, the Supreme Court made it have something to do with it in 1947 in the case of Everson v. Board of Education.  Many liberal scholars will defend the Court’s broadening of our unwritten constitution based on esoteric notions of political theory and social justice.  But none of them will ever pretend that we actually bother with the text of what we still assiduously refer to as the “Establishment Clause.”

In my view, liberals like Chemerinsky continue to employ the term “Establishment Clause” when they refer to attempts to limit the states rather than Congress for more than mere habit or convenience.  They do it for strategic reasons, to maintain the semblance that we are still talking about CONSTITUTIONAL LAW—as in, the law based on our nation’s most revered document—rather than mere decisional law—as in, the law as handed down by courts.

It is for this reason that it is so bothersome when liberals wax indignant at “activist” efforts to “tear down the wall of separation” between church and state. Dean Chemerinsky knows what the text of the First Amendment says. He knows it never applied to the states. He knows it cannot logically be applied to the states. Thus, the “separation” doctrine is not a constitutional one, it is a decisional one wrought by the Court. Liberals can be disappointed when subsequent Courts chip away at the holdings of prior liberal-leaning decisions. But it is disingenuous to pretend at indignation as if the Constitution were in play.

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Written by Tim Kowal

November 22, 2010 at 11:14 pm

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