Tuesday, June 28, 2005
More on the Establishment Clause: Over at Radioblogger.com there is a transcript of a portion of yesterday's Hugh Hewitt show and a discussion/debate between John Eastman and Erwin Chemerinsky over the Supreme Court decisions. I found this portion noteworthy:
Hugh Hewitt: Let me ask you both. I got a Hamilton quote, which is familiar to many people, sent to me. I'm wondering if you [sic] opinion, if Kentucky removes the Ten Commandments, and they install in its place, a chiseled bit of marble that reads thus: the sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written as with a sunbeam and the whole volume of human nature by the hand of the Divinity itself, and can never be erased or obscured by mortal power. - Alexander Hamilton, 1775. John, would that fly?
John Eastman: Well, under the Court's decision today, probably not. Under the original understanding of the establishment clause, clearly.
Hugh Hewitt: Erwin, is that okay in your book?
Erwin Chemerinsky: No, because I don't believe there was an original understanding of the establishment clause. I think I can come up with lots of different framers with many different positions. I think John Marshall got it right when he said we must never forget that it's a Constitution we are expounding, one meant to adapt and endure for ages to come. It makes no sense to me that we're going to be governed in 2005 by the views of people who lived in 1791, in an egrarian [sic] slave society. I'm interested to know what Alexander Hamilton thought, because he's a very smart man. But I don't think it's binding on the Court in 2005.
Chemerinsky's view is that of the standard left liberal -- and it's really nuts. Under Chemerinsky's legal reasoning, he doesn't "believe there was an original understanding of the establishment clause." This doesn't pass the smell test. The founders approved the First Amendment, and they didn't know what "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" meant? Chemerinsky may want to study up on his history. While there were definitely differences in the degree of religiosity among the founders, Chemerinsky would have a very hard time finding any founder who holds his view that religion should be purged from the public square.
I'd also like to take Chemerinsky to task for this statement:
It makes no sense to me that we're going to be governed in 2005 by the views of people who lived in 1791, in an egrarian [sic] slave society.
It makes even less sense that a we would allow ourselves to be ruled in 2005 by nine unelected jurists. The Constitution can change, it can adapt -- and there's a process for that -- a process that the Court has ignored over the decades. There might be a dozen more constitutional amendments today if the Court hadn't gone rights-hunting in the penumbras of the Constitution.
The next time a vacancy opens up on the Supreme Court, then I'm not so sure that we need a lawyer on the court (a law degree is not constitutionally required for the Supreme Court) -- I think we need a historian. Someone with basic reading comprehension skills who can look honestly at the history of the Constitution and our laws and apply them in a fair, evenhanded manner.
I nominate Victor Davis Hanson to be the next Supreme Court justice.