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May 24, 2006

they've gotta be joking

Don Herzog: May 24, 2006

Late-breaking news flash, dateline 5 January 1642 (no, that's not a typo), the Journal of the House of Lords:

A Message was brought from the House of Commons, by Mr. Nathaniel Fynes:

Message from the H. C. about the King's coming to their House, to demand some Members.

1. To acquaint their Lordships, that Yesterday the King came to the Door of the House of Commons with armed Men, and came into their House in Person when the House sat, and demanded some of their Members, which they conceive is a high and great Breach of the Privileges of Parliament; therefore they thought it fit to give their Lordships Notice of it, as a Breach of Privilege, for it may concern this House likewise.

The hapless Charles I had hoped to arrest some of his leading parliamentary opponents for treason; civil war would break out later that year.  This quaint episode was tucked away in some cobwebbed corner of my brain.  Who would have thought today's Congress could make it surface?

But yes, Dennis Hastert and Nancy Pelosi have come out swinging — "The Justice Department must immediately return the papers it unconstitutionally seized" — after the FBI searched Rep. William Jefferson's office.  (Jefferson apparently spurned a subpoena last year.)

What's the alleged constitutional obstacle?  Why, Article I, sec. 6, defining privileges for senators and representatives:

They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

I wish our inestimable Congressmen would stop hyperventilating.  Jefferson wasn't arrested.  He hasn't been hauled into court, or even "any other Place," to answer for anything he said on the floor of the House.  More important, I can't imagine a halfway-decent argument that we have to make his office an FBI-free zone in order to safeguard the privileges he actually enjoys.

You bet, the Bush administration has been high-handed about executive powers.  And I'd be happy to entertain arguments that it was a dumb policy call to send the FBI in.  But Bush really isn't Charles I, and Bush and Congress will not in fact be squaring off in civil war later this year.

I used to think, okay, this time American politics has hit rock bottom.  I've stopped thinking it.  Now I'm with Puck:

Lord, what fools these mortals be!

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May 06, 2006

Government and Religion

Steven Shiffrin: May 6, 2006

On Prawfsblog, Rick Garnett takes the view that: “I certainly share Marty [Lederman]’s (and
Madison's) concern about religious faith being reduced to a convenient means for achieving the government's ‘secular’ ends.  That said, I'm not sure why it should be unconstitutional -- or, in any event, why it would be ‘profoundly disturbing’ -- for the government, as a general matter, to take, and act on (in non-coercive ways, of course, and consistent with the freedom of conscience), the view that ‘religious transformation [and]  faith’ are good (when freely embraced).” 

It is not clear to me that an announcement by government that religious faith is good without any accompanying action is unconstitutional though I think we would have a better Constitution if it were.

I think it might well be constitutional because it is constitutional for the government to put “In God We Trust on the Coins,” to say “God Save the United States and This Honorable Court,” and to issue a Pledge of Allegiance “Under God.” I think these practices affirm religion over non-religion and monotheism over non-monotheism. And I think that claims that the motto, the prayer, and the Pledge are non-religious lack integrity. I argue this in The Pluralistic Foundations of the Religion Clauses, 90 Cornell L.Rev. 95 (2004). Michael Perry also argues this in a forthcoming article in
St.Thomas and I believe he has also expressed the view in print previously as well.

I think a government statement to the effect that religion is good might cross a line in it that might be encouraging religion, and that is unconstitutional. I certainly do not think that government is entitled under the Establishment Clause to proselytize (thus intelligent design can not be taught in the schools) and it is not entitled to say what God has to say about any subject (it should be inappropriate for government to post versions of the Ten Commandments).

Whatever its constitutionality, I would find it disturbing for government to announce that religious faith is good, let alone to act on it. First, I think government neutrality on this subject is more respectful of citizens who disagree. I do not believe that a person’s religion or lack of it should have any bearing on their relationship to the state. Statements like these including “In God We Trust” mark out two classes of citizens: those who do not trust in God are not part of the “We.” They are marked as outsiders. Just as important, I do not trust government to help religion. I believe that close ties with government have hurt the Church in Europe. The Church made the horrible mistake of thinking that close ties with monarchs, Vichy France, Salazar, Franco, Mussolini, and the like would be good for the Church. This not only interfered with the kind of witnessing that was called for. It put the Church on the wrong side of history in the eyes of millions of Europeans.

Close ties with government risk alliances with corruption and dependency. I do not maintain that phrases like In God We Trust have hurt religion much (though it has robbed the phrase of spirituality, and has married religion with money at the same time it asserts a theological proposition), but it is hard for me to imagine that they help. It may be that demagogic politicians might try to curry favor by saying that In God We Trust needs to be put on the currency or to forge alliances with merchants in highlighting Christmas – a special form of blasphemy. But I believe religion can get along quite well (I am sure Rick does too) without government announcements that religious faith is good.

There is a special irony here. Religious conservatives ordinarily are suspicious of government in a broad swath of areas, but they seem comfortable with government promoting religion (I have no basis to assume that Rick is part of this irony). I am genuinely curious as to why.

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