Sunday, October 15, 2006

Top-Notch Fodder with which
to Chew Our Cud

Here's an interesting article by Raymond S. Kraft (I believe he's a lawyer) that amounts to a call for Congress to write legislation clarifying the meanings of several 'ambiguous' clauses in the Bill of Rights that regularly come up to the Courts for clarification.

"H.R. 2679, the Public Expression of Religion Act (PERA) sponsored by Rep. John Hostettler (R-Ind.) and the Senate version S. 3696, sponsored by Sen. Sam Brownback (R-Kan.), are winding their way through Congress and, I hope, will soon be passed and signed into law by the President. These bills are meant to put a crimp in the long line of lawsuits brought by the ACLU (the American Civil Liberties Union, aka the American Communist Liberties Union) attacking certain acts and practices which are offensive only to a very minute minority of pathologically thin-skinned people, such as prayer at high school graduations, the display of the Ten Commandments in or near courthouses, the erection of crosses at military cemeteries, the words "under God" in the Pledge of Allegiance, and so forth, by barring the courts from awarding attorney fees to any party in any Establishment Clause lawsuit."

"This is an excellent idea. A good beginning. But it will not prevent the ACLU from filing, and sometimes winning, its lawsuits, which generally take the position that any reference to the religious faiths and heritage of the American people on public (government) property is a violation of the first clause of the First Amendment of the U.S. Constitution, "Congress shall make no law respecting an establishment of religion . . .""

"The ACLU does not give equal attention, of course, to the rest of that sentence, which continues: " . . . or prohibiting the free exercise thereof; or abridging the freedom of speech . . .," which, it seems to me, should include the freedom to express religious ideas and traditions in public places for the more than 90% of all Americans who are religious, and the more than 90% of those who are Christian. The ACLU seems to take the position that the First Amendment does not guarantee freedom of religion, but freedom from religion, as it did in the Pledge of Allegiance cases, in which Dr. Newdow and the ACLU asserted that the phrase "under God" in the pledge of allegiance was unconstitutional because it was personally offensive to Dr. Newdow, claiming, in effect, that any acknowledgment of religious faith in a public context that is offensive to anybody is an "establishment" of religion."

"While the Public Expression of Religion Act (PERA) will bar the courts from awarding attorney fees to the ACLU in Establishment Clause cases, it will not prevent, or deter, the ACLU from continuing to bring these cases, which can be financed by private contributions."

"I think we can go farther and do even better."

"Some of the biggest Constitutional controversies are misunderstood, even by some Supreme Court Justices. The Court is more or less split between the "living constitution" liberals, who think the Constitution is malleable and its meaning must evolve with changes in social mores and culture; and the "originalist" and "strict constructionist" conservatives who think the Founding Fathers had the last word. But there is another reality at work - and both of these schools of thought seem to miss it - which is that most of the controversial clauses in the Constitution are controversial because they are ambiguous. They are not defined in, or by, the Constitution."

"What, precisely, does "an establishment of religion" mean? Does it mean that there shall be no reference at all to any religion on any public property? Or does it only mean that Congress shall not establish an official church, the Church of America, as England has the Church of England? The Constitution doesn't say. Or, again in the First Amendment, what, exactly, does "the free exercise thereof [religion]" mean? Are there any limitations at all to my freedom to do anything in the name of religion?"

"What does "the right to keep and bear arms" mean? "Unreasonable search and seizure?" The 5th Amendment allows the government to take private property for public use, with just compensation, but what does "public use?" mean? This question lay at the center of the recent Kelo case, in which the Supreme Court held that the taking of a private home to build a private office and commercial park which would have the public benefit of increasing jobs and tax revenues for the city fell within the meaning of "public use," much to the dismay of millions of Americans."

"Since these terms, and others, are not defined by the Constitution, every time there is a lawsuit about them, somebody has to define them, in order to decide the case. And since Congress has not passed legislation to define these terms, the responsibility to define them has fallen, by default, to the courts, ultimately to the Supreme Court."

"It is generally accepted legal doctrine that if a law is vague, ambiguous, or uncertain, the court can, should, and must define the law in such manner as to give effect to the apparent intent of the law (the "legislative intent"), unless it is so vague, ambiguous, or uncertain, as to be unenforceable or void for ambiguity. The court must either look at the law and say, "This isn't well written, but it's pretty obvious what it's supposed to say, so we're going to say that it means what we think it was meant to say;" or, "This is so badly written that we can't be sure what it means, we can't decide what the legislative intent was, so we are going to declare it void for ambiguity, we won't enforce it.""

"Section 1 of Article 1 of the Constitution begins: "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.""

"Now, the power to write and rewrite, or amend, legislation, and the Constitution, obviously lies in Congress. Congress can amend its laws, or the Constitution (a long process that requires a 2/3 majority in both houses of Congress, and ratification by 3/4 of the states), to remove or clarify terms that are vague, ambiguous, unclear, or undefined. For the most part, it doesn't so this, thereby abdicating its legislative power to amend laws and define the terms and meanings of laws to the courts, which must then act in a quasi-legislative capacity to resolve undefined terms in the Constitution and other laws."

"Thus, for more than two centuries, the Supreme Court has been acting, of necessity, as a 9-person quasi-legislature, whenever it is called upon to define an undefined term in the Constitution. Since it must resolve the case somehow, and since Congress hasn't provided the definition of "an establishment of religion" to clarify the First Amendment, it falls to the Court to do so. Of course, it is an unelected legislative body, and a small one, and what it decides necessarily reflects the beliefs, philosophies, and biases, of whoever the Justices happen to be at the time. Which may or may not coincide with the will of the people, or of Congress. And, since Supreme Court decisions are sometimes decided by a split court, 3 to 6, or 4 to 5, a decision interpreting the Constitution or applying a law to the entire nation can sometimes be made - in effect - by just one Supreme Court Justice, whoever cast the tie-breaking vote."

"But there is a Third Way here - and that is for Congress to debate and define, by legislation, the controversial and undefined terms in the Constitution, such as "an establishment of religion." I cannot find or think of any reason why it would not be within the power of Congress to do so, and it would not require an amendment of the Constitution, so long as the legislated definition was consistent with a plausible and reasonable reading of the Constitution. Congress would not remove or change the phrase, "an establishment of religion." It would simply define the phrase - deciding what "an establishment of religion" means - something that the courts have been grappling with for decades. This might be a long and controversial debate in Congress, but it would be a good debate for us to have."

"And this would not be unconstitutional, as long as the legislative definition of "an establishment of religion" was consistent with the apparent intent of the First Amendment - which is, obviously, to protect the broadest possible scope of religious freedom, and to prohibit an official or State religion."

"Most importantly, by defining these controversial clauses and phrases in the Constitution, Congress could dramatically limit the ability of the ACLU and its ilk to challenge the free exercise of religion in public places, and other liberties that the ACLU and others do not think Americans should have. So long as the legislation was not vague and ambiguous, and was not clearly unconstitutional, the Court would be bound by the definitions adopted by Congress, since, unless the law is vague and ambiguous, or clearly unconstitutional, the Court must defer to the legislative power of Congress. Congress writes the laws, the courts interpret and enforce them. If the law is clear there is little room for interpretation, and the courts can only enforce it."

"So, we can propose what might be called the Constitutional Clarification Act of 2007 to help put a stop to some of the frivolous litigation brought by the ACLU, and others, that is offensive to a vast majority of Americans, and contrary to the spirit of liberty that permeates the Constitution."

"The First Amendment reads (in controversial part):

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ""

"I propose this be clarified, by separate legislation, as follows:

"(a) No ceremonial act or memorial on public property which recognizes, or acknowledges, the religious faith and heritage of the American people shall constitute an 'establishment of religion' within the meaning of the First Amendment, so long as it confers no material benefit upon, nor exacts any material detriment from, any person, as a consequence of his, or her, religious faith, or lack thereof."

"This should make it clear that ceremonial prayers, crosses at war memorials, Ten Commandments at courthouses, and so forth, which are "ceremonial acts or memorials," do not violate the Establishment Clause of the First Amendment, and should pretty much put a stop to ACLU litigation over these things. The provision that such practice must not confer any material benefit, or exact any material detriment, should help protect against the establishment of any official religion or church, and also bar plaintiffs from having "standing to sue" on the basis of immaterial, trivial, "injuries," such as having been "offended" by hearing a prayer, or seeing a cross or the Ten Commandments."

Kraft goes on to discuss ideas to clarify the meanings of 'to keep and bear arms', 'unreasonable search and seizure', and 'public use'.

(H.T. John Ray in Tongue Tied 3.)


FreeThinker said...

There's nothing wrong with the Establishment Clause. I'm proud to live in a nation that does not mix religion with government. I will defend this tradition with my life.

Purple Avenger said...

In the case of the 2nd amendment, there is a Federal definition of "militia" that has been on the books for quite some time.

Cornell Law School has that section of the US code online

Anti-gunners invariably avoid this like the plague while trying to con people into believing "militia" means national guard, when the federal code quite clearly states otherwise.

Steve said...


Did you even read the post? Or follow the link to the whole article?

You may not think that the Establishment Clause were so complete if more Conservatives are placed on the federal benches at all levels.

The 'tradition' of which you speak is a johnny-come-lately. The longstanding tradition is much different than that which you perceive.

Purple A,

Your Cornell Law link didn't actually seem to clarify too much. Since I am over 45 years old, it would seem to indicate that I wouldn't have the right to keep and bear arms. (Except for the fact that I am a veteran.)