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April 18, 2006

court-bashing fairy tales

Don Herzog: April 18, 2006

I'm on all these right-wing email lists.  No, I didn't sign up.  Someone else signed me up, shortly after I started writing for this blog.  Hey, if you're reading this and you're the one who did it:  thanks! it's been tons of fun.

Some of my more overheated email comes from the tireless Bobby Eberle, who runs www.gopusa.com.   Today Mr. Eberle graced my overstuffed inbox with two, count 'em, two messages.  I clicked on the top link in the first and got sent to a "news story" reporting on the sentiments of John Whitehead, lawyer and head of the Rutherford Institute.  I confess I was startled by this understated claim:

The central issue in the debate, the pro-family legal advocate contends, is the question of whether Christians are going to be able to say Jesus' name in public in America.  "And if you want to be able to do that," he says, "you're going to have to fight the cases."

Whitehead is responding to this opinion, just handed down by the eighth circuit.  Steve Warnock had won an injunction against a public school district that "prohibits them from orchestrating or supervising prayers at school graduation or baccalaureate ceremonies."  At a baccalaureate ceremony at the high school, Warnock witnessed "an invocation and a benediction by local ministers."  The standard on appeal is whether the trial court abused its discretion, and the circuit court ruled that it hadn't:  "The defendants contend that the baccalaureate service was a student-organized event, but there was ample evidence on the record to demonstrate that school employees were involved with almost every aspect of the service's preparation."

It's a long way from this to "the question of whether Christians are going to be able to say Jesus' name in public in America."  Nothing in the flurry of legal proceedings generated by Warnock even tiptoes toward preventing private parties from invoking Jesus, or talking about religion, as much as they like.  The establishment clause worry is about a public school, an arm of the state, promoting religion.  But Whitehead presses enthusiastically, shamelessly, on:

Public events and speeches should not have to be censored or excluded "just because someone mentions Jesus' name," Whitehead insists.  However, he points out, many special interest groups and liberal organizations like the American Civil Liberties Union apparently disagree and are willing to fight to make sure any Christian references to or expressions of Christian faith are silenced.

Oh please.  I'm not a big fan of the ACLU:  some of their views on first amendment issues seem to me cartoonish.  But they sure do understand the difference between state speech and private speech, the difference Whitehead glides right over.  A few years ago, the ACLU brought a lawsuit to force a Tennessee County to remove displays of the ten commandments from public buildings.  Here's what the state Executive Director of the ACLU had to say:

The ACLU brought the lawsuit at the request of local clergy and concerned residents, Weinberg explained, to ensure that individuals have the right to decide for themselves whether to practice a particular religious faith or to post the Ten Commandments in their homes or in their businesses.
"Were the government to prohibit the posting of the Ten Commandments in private homes or businesses, the ACLU would fight to protect people's right to promote their religious beliefs and practice their religious faiths.  That is what we are here for," she said.

I ruefully suppose that Eberle didn't count on my checking up on Whitehead's claim.  "The ACLU is fighting to eliminate all mention of Jesus in public!"  Well, no, they're not.

My day's second email from Eberle skips right past gross factual misrepresentation into a smear with no facts at all.  This one is a fundraiser for Rick Santorum, whose campaign for re-election as senator from Pennsylvania is in notorious trouble.  The short email has eight, count 'em, eight links to click on to donate money to Santorum.  (I wondered why Eudora didn't unceremoniously deposit it in the junk box, you know, the one that automatically gets those Nigerian letter scam emails.)  The senator says just a bit to excite the poor reader into opening his wallet, including this gem:

The federal courts have declared war on our liberty and our traditional American heritage and we must restore true Constitutional principles to our judicial system.

Yikes!  A declaration of war from the courts!  Somehow google's capacious news files seem not to have the story.  Probably a conspiracy.  Alas Santorum doesn't supply any evidence.  He doesn't even say quite what he means.  Why bother?

Eberle's inflammatory emails are plain absurd.  To say the screamingly obviously, courts aren't infallible.  But they're not in cahoots with the ACLU to make sure no one can mention Jesus in public.  And they aren't traitors.

In 2003, the ACLU of (shudder) Massachusetts went to court — to protect the right of Bible Club members at a public high school to hand out candy canes with extensive religious messages (including, for instance, "Jesus is the pure Lamb of God, who came to be a sacrifice for the sins of the world").  And what did the dastardly federal district court do?  Why, they found for the students.  This was private speech, not state speech.  Easy case.  But you'd never dream of it if you get your news from the likes of Bobby Eberle.

Mr. Eberle and his friends seem to hold the American public in contempt.  They seem to think the public will believe any alarmist fairy tale they choose to peddle.  Shame on them.


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Posted by: D.A. Ridgely

Well, that’s just one more reason for me not to start a blog! As matters already stand, it’s all I can do to sort through the better offers for discount Viagra and penis enlargement I’ll be able to afford when the Swiss bank transfers all those millions into the account number I sent along with a few thousand dollars to my new Nigerian partner. Ain’t the internet a great place?

Of course, given that “Comments are moderated and will not appear until approved by the author” I’m not sure why I’m writing this. How often, after all, did Mr. Herzog and I ever approve of each other’s comments? (Oh, the endless ambiguities of language!) And, by the way, Mr. Herzog, shouldn’t yours be just about the only name above the line here at ol’ L2R at this point?

Okay, a momentary lapse into seriousness. Yes, the heat-to-light ratio of such rhetoric is borderline shameless. Might I add at the risk of whataboutery (which would, by the way, be the likely name of my blog!) that the faux hysteria in certain sectors of the secular left over the dark forces of the “Religious Right” is no less inflammatory or devoid of moderation and reason? Of course I might. Why, I just did!

Nice to see L2R hasn’t been abandoned entirely at least quite yet, Don. Cheers!

Posted by: D.A. Ridgely | Apr 18, 2006 10:52:15 PM

Posted by: Fingerprint File

This post from Crooked Timber seems to tie in well with what you're saying. Although you're talking about email, this post states that blogs are also susceptible to disinformation, and we'll be seeing more of it in the '06 and '08 elections. Hopefully the American public is as smart as you think they are.

Posted by: Fingerprint File | Apr 19, 2006 12:09:40 AM

Posted by: Bret

Somehow I get GOPUSA spam as well, but fortunately my spam filter works a bit better than Don's so I don't get exposed to such nonsense. I'm not so sure an actual person signed Don (or me) up. Seems to me it's more likely a robot is to blame.

Posted by: Bret | Apr 19, 2006 3:10:47 AM

Posted by: neal

in college, i used to sign my roommates up for GOP emails as a joke, but i assure you prof. herzog, i had nothing to do with your spate of right-wing spam.

"Mr. Eberle and his friends seem to hold the American public in contempt. They seem to think the public will believe any alarmist fairy tale they choose to peddle. Shame on them."

well, yes, eberle & co. do indeed seem to hold the public in contempt, but sadly, i think that many americans really do subscribe to the tales that these people peddle. as an east coaster, i am all too familiar with santorum's antics. unsubstantiated statements (of his) like the one you present in your post used to regularly fly out of the dishonorable senator's mouth, and were rarely scrutized by anyone but PA's trusty NPR affiliates. that is, until his religious fundamentalism got the better of him and alienated the center-right.

sadly, though, he can get away with rubbish statements about the "war" on values, tradition, etc because there will be a sizeable portion of the public that will lap this stuff up and fork over thousands of dollars for his campaign. and even if santorum doen't prevail, he has still gotten the better of a significant chunk of his constituency.

Posted by: neal | Apr 19, 2006 3:14:40 AM

Posted by: Tom

So let me get this straight. The 1st amendment prevents prayer at a high school graduation because that would amount to 'establishing' a religion.

Ok, fine.

But wouldn't you agree that this would not be an issue if the federal government was not currently overstepping its bounds? Can you find me anywhere in the Constitution of the US that delegates to the federal government the power to fund education?

As you may recall, the Constitution was supposed to be a enumeration of the powers of government. If it's not in there, they shouldn't be able to do it. But there I go again, looking for facts and such.

Posted by: Tom | Apr 21, 2006 11:17:17 AM

Posted by: MeSo

"Can you find me anywhere in the Constitution of the US that delegates to the federal government the power to fund education?

As you may recall, the Constitution was supposed to be a enumeration of the powers of government. If it's not in there, they shouldn't be able to do it. But there I go again, looking for facts and such."

Can you find me anywhere in the Constitution of the US that delegates to the federal government the power to create an air force?

As you may recall, the Constitution was supposed to be a enumeration of the powers of government. *If it's not in there, they shouldn't be able to do it.* But there I go again, looking for facts and such.

Posted by: MeSo | Apr 22, 2006 11:31:45 AM

Posted by: dpw

Tom writes: "Can you find me anywhere in the Constitution of the US that delegates to the federal government the power to fund education?"

The first clause of Art. I, s. 8 (of the Constitution) provides:

"The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States. (emphasis mine)

This is the taxing and spending power provided in the Constitution. It is, I admit, seriously vague stuff, and its interpretation is by no means uncontroversial. However, it does constitute textual support for federal funding of education. See U.S. v. Butler, 297 U.S. 1 (1936) for the supreme court's endorsement of Hamilton's interpretation--i.e., the "general welfare" clause is not restricted in meaning by the other enumerated powers.

In addition, prayer in public schools would remain an important consitutional issue even if federal funding to public schools were stopped. The 14th Amendment, which applies to the states, is consistently interpreted to make the First Amendment applicable to the states (including their agents and political subdivisions).

Posted by: dpw | Apr 23, 2006 10:47:27 PM

Posted by: johnt

It is a dubious point to say the general welfare clause trumps powers that the founders took the trouble of enumerating, why bother enumerating them? One is still allowed to disagree with the Supreme Court even though it has granted itself, through our sloth, the mantle of primacy in all matters government, society, and privacy.
Of course the schools have at least the moral, if not legal, right to freedom in religious expression. For a very good reason, they are public schools, as in the public, which pays for them. If this offends some people, or threatens their precarious egos, these sensitive souls should be reminded that the Constitution doesn't enumerate ego safeguards.
A truly tolerant approach towards the non establishment clause would allow such expressions as well as expressions of other recognized faiths and secular statements, at duly recognized and appropriate times and occasions.
This however runs the danger of fostering respect, recognition, and acceptance by students and the general population. And you can't run a democracy without a little diviseness aided by a militant secularism.

Posted by: johnt | Apr 24, 2006 8:28:03 AM

Posted by: dpw

Well, johnt, no one has said that the General Welfare Clause "trumps" the other enumerated powers; rather, it is an additional power--just one of many enumerated congressional powers.

As far as your "why bother enumerating them" statement: Interestingly, this very consideration serves as a reason for the court's interpretation of the clause. Why would the Framers bother enumerating this power if all it does is provide power to finance its other powers? The Necessary and Proper Clause would have been sufficient to do that. It's a time-honored principle of legal interpretation/construction that language included in legal text is presumed not to be superfluous. Accordingly, the inclusion of the General Welfare Clause (or the Taxing and Spending power, more generally) must add something to congressional power beyond powers enumerated elsewhere (including those powers implied by the Necessary and Proper Clause).

In any event, I don't want to foster any egregious thread drift, so I'll forgo a response to the remainder of your comment (which I'm not sure I follow, anyway).

Posted by: dpw | Apr 24, 2006 1:23:44 PM

Posted by: Stuart

Don, I'm surprised at you. Political mailers are misleading and you think it's commentworthy? Really now........

Posted by: Stuart | Apr 25, 2006 5:10:23 PM

Posted by: johnt

dpw, It is a time honored practice in my house to regard the general welfare clause as well as the necessary and proper clause as being conducive and suportive of enumerated powers. To follow your reasoning why mention " provide for the common defence" and then elaborate in sect.8 on the Army and Navy?
Superfluous I would think. Maybe we should play around with "insure domestic tranquility" and put aside the fact that both are in the preamble and not part of the body of law specified in the Constitution. Following that we may exercise some disregard for the powers and sovereignty left to the states as well as pretend the 10th amendment doesn't exist. The possibilities are endless, particularly if we skip over that part of the "necesary and proper" being followed by the phrase "the foregoing powers".
Bandy this about as we may your post rests on "the time honored principle of legal interpretation/construction". Thanks, but I retain the notion that nothing in government is above criticism and that what may be, or may have been, time honored in the judiciary has acquired a certain tarnish over the years.

Posted by: johnt | Apr 27, 2006 11:31:00 AM

Posted by: johnt

Lest there be any confusion over my reference to the preamble in my 11:31 post the use of "general welfare" in Sect 8,1 is no less suspect in conferring power and as noted above the necessary and proper clause if anything supports the enumerated powers doctrine, "foregoing powers" having been, what else, enumerated.

Posted by: johnt | Apr 27, 2006 7:32:37 PM

Posted by: dpw


Perhaps I wrong, but I think you may be misunderstanding the "General Welfare" clause that I was referring to. I'm not referring to the Preamble (which includes similar language about the common defense and general welfare). I'm referring to a specific power enumerated in Art. I, sec. 8. Specifically, I'm referring to the very first enumerated power, which gives Congress the power to lay and collect taxes in order to provide, inter alia, for the general welfare. The debate, going back to Madison and Hamilton, surrounds the question whether this power to tax and spend is constrained in some way by the other enumerated powers or whether it is as broad as its language suggests.

I'm not really taking a strong position either way, though I think the current interpretation is perfectly reasonable. I only mentioned it to inform Tom (see above) that there is textual support for the federal government's power to spend money on public education--at least if we believe public education might serve the general welfare.

I added, in response to your first remarks, that the necessary and proper clause (found at the end of Art. I, sec. 8) permits Congress to make all laws that are necessary and proper to bring into execution the enumerated powers. Given this broad grant of permission to Congress to do what is necessary to carry out its enumerated powers, there is not need to grant power elsewhere simply to allow Congress to raise and spend money to enable it to carry out its enumerated powers.

Thus, if we presume (in the absence of indication to the contrary) that the Constitution does not include unnecessary or superfluous provisions of power, then we may interpret the tax and spend power as including the power to spend for purposes not specifically enumerated elsewhere in section 8. To put it another way, if the Framers wanted to prohit spending for purposes beyond those intended by the other powers, the Framers could have easily found the appropriate language to express that clearly. But, instead, the Framers (who appear to have carefully chosen the Constitution's language) chose to limit spending only to the common defense and general welfare.

You may not like that interpretation, but it is certainly not a flat-out ridiculous way to read the language.

Posted by: dpw | Apr 28, 2006 6:56:34 PM

Posted by: johnt

dpw, You may have missed my addendum of 4/27, 7:32 where I include Art 1 sect 8 and incorprate my previous remark to the body of the Constitution. We are at loggerheads as I can not get around the word "enumerated", it being as specific a use of language as can be imagined.
I believe that a concept of dual sovereignty was clearly held by most of the founders and ratifiers. That,combined with the equally clear language of the 10th amendment and the reliance and stipulation of "enumerated powers" doesn't offer much wiggle room, however history has unfolded.
Nonetheless, thanks for the response.

Posted by: johnt | May 1, 2006 11:02:43 AM

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